Internet article reports that "Divorce Mediation, Rather than Litigation, Facilitates a Smoother End to the Marriage"

See  article called:  Experts:  2 ways to divorce proof your marriage at http://living.msn.com/love-relationships/love-sex/experts-2-ways-to-divorce-proof-your-marriage .

The article talks about a survey of mental health professionals conducted by YourTango.com.  It discusses improving communication and making your spouse a priority as ways to "divorce proof" your marriage.

It also says that "'73 percent of experts say that mediation, instead of divorce litigations, facilitates a smoother end to the marriage,' states Andrea Miller, CEO, YourTango."

STAYING TOGETHER FOR THE KIDS: YES OR NO?

by Shawn Skillin, Esq./Mediator

I can’t tell you how many friends and clients have said to me, “just ____ more years and my youngest will be in college and then I can get divorced.”  It’s an old question, should I get divorced now or stay in an unhappy marriage for the sake of the children and get divorced after they are grown, out of high school, the house, or college?  I’ve heard it from men and women, but mostly women.

It brings up a few questions.  Is it better for kids to be raised by two parents in the same house even if those parents are unhappy and the house is sometimes filled with tension?  Is your marriage really over, were you a poor match to begin with or are you just going through a tough time?  How bad is your marriage?  Are you and your spouse both interested and willing to work on making it better?  Are you resilient enough to move on at this time?  Why are women so overwhelmed? 

I’ll just address the first question right now and save the rest for another day.  Is it better to stay together for the kids? There is no easy answer. My parents were divorced when I was five, I had two younger brothers who were 3 and 4 years old.  We grew up knowing nothing different.  It just was the way it was.  The actual “split” is a non-event in my memory.  There was no dramatic argument, no yelling and screaming, no slamming of the door on the way out.  There had been some dramatic arguments prior to that, at least a couple that I remember and found upsetting at the time.  My parents divorce was not child centered, they were not good co-parents.  My mother often spoke negatively of my Father.  My Father never said a bad word about my Mother.  They both put us in the middle frequently. Two of the three of us are currently married and have children, we have each been previously divorced once ourselves.  The third has never married.

My cousins, three of them all about the same ages as my brothers and I, had parents who stayed together until they were all out of high school and then divorced.  We have spoken of this issue at family gatherings a few times over the years.  The sudden divorce of their parents surprised and upset them.  They expressed feeling like their family life growing up was a sham, that they lost a certain sense of security in facing the thought that the “happy” family they thought they grew up in, really wasn’t as it appeared. It made them question their ability to assess their own reality.  My Aunt and Uncle apparently did a pretty good job of appearing happy on the “outside.”  They remain on friendly terms and the divorce was not an ugly, nasty one.  One of the three is married with children, the other two have never married. All of us, by the way, are now in our fifties.

I don’t think there is an easy answer to whether or not to stay married for the kids.  Every couple fights from time to time.  How you fight, how you resolve differences, how you “make-up” afterwards is important to consider.  If you can be somewhat respectful in your arguments, stay connected emotionally in a positive way when you are working through problems, this is not harmful to your children.  However, if your relationship is destructive emotionally and there are frequent, contemptuous, hurtful arguments, it’s probably not a great environment in which to raise children.  If there is domestic violence, physical or emotional abuse of each other or the children, a divorce is appropriate.

Children learn how to relate to others by observing those around them.  If the example they are learning from their parents is that marriage is hard, both parties are unhappy, you fight a lot and don’t seem to enjoy being together, then I’m not sure they are better off in an intact family.  What if everyone was actually happier if you got divorced?  What if you and your spouse actually got along better if you lived apart? 

Children aren’t necessarily harmed by divorce.  They are affected by it, yes.  But they take their cues from the adults.  If you and your spouse can be better friends and co-parents by living apart, that’s not harmful to your children.  If you can go on to have better relationships with more well suited partners, then that’s not bad for your children either.  They get a chance to see what a healthy and respectful relationship looks like.

Parents, especially Mothers, often tell me, I don’t want to be away from my children fifty percent of the time.  I don’t want to miss out on school events, first dates, sporting events, etc.  In a “good divorce” parents don’t have to miss out on as much as they think.  If the parents can be respectful of one another, they can both attend school events, games, and activities regardless of whose day it is to have the children.  The key is to make it a pleasant time for the children.  If you can’t and both of you being there just makes it tense, and the kids are worried about a fight breaking out, then take turns attending events.  Interestingly enough, what I often hear from parents later on is that they appreciate a break now and then, being able to catch up on sleep, see friends, have some alone time, or even a “sleep over of their own.”
 
I have clients ask me on a regular basis, “How do we tell the kids?  They are going to be so surprised, they aren’t expecting this.”  They tell me they are very good about concealing their differences from the children.  So we come up with a plan. At the next session, the report I hear time and again is, the children weren’t that shocked, they knew something was wrong and they took it pretty well.  Kids are very observant, they know when Mom and Dad are happy, sad, frustrated, or depressed.  They might not express it or be able to label it, but they know. 

Kids are also very resilient, if we allow them to be.  If we give them a chance to have their own feelings, express those feelings and deal with them effectively.  The kids will be okay if we allow them to love and enjoy both parents; if we avoid putting our feelings and frustrations on them;  and if we don’t put them in the middle, make them responsible for our happiness, or expect them to choose sides.

Deciding whether or not to divorce is difficult.  Consider seeing a therapist to help you evaluate why you are considering divorce and whether or not your marriage is just in need of a tune-up or whether it’s really over.  If it’s time to move on, consider how to approach your divorce in a respectful and positive way and how to be an effective co-parent.  There are some excellent resources out their on marriage, divorce and co-parenting, use them!

Feeling Guilty About Getting Divorced?

See a good article, written by someone named Cynthia Copeland on the Huffington Post today at http://www.huffingtonpost.com/cynthia-l-copeland/why-divorced-moms-need-to_b_3180720.html?ir=Divorce&utm_campaign=050913&utm_medium=email&utm_source=Alert-divorce&utm_content=Title. 

The article is entitled:  Why Divorced Moms Need to Let Go of Their Guilt.

If you put your children first, encourage your children to have good relationships with their other parent, the children will generally adapt and do okay.

Mediation, Now More than Ever

The National Conflict Resolution Center (NCRC) started its Divorce and Family Law Mediation program in 1994 to offer divorcing and separating couples a better way to get through the process, by providing them with relevant legal information, and assistance negotiating agreements consistent with the law and acceptable to the couple.

A family law attorney mediator guides the process; the outcome is controlled by the couple. Their independent attorneys may advise. This process allows for a resolution that meets the needs of the family, which the couple, of course, knows better than anyone. Divorce or separation will typically cause the parties to live on less money (the same amount of household income has to pay for two households, instead of one), find new or better jobs, and spend less time with their children. When people are involved in legal matters that affect their whole lives, it is very stressful, time consuming and disruptive. Court dates are not set for their convenience, information may be provided by one side that is designed to help the presenting party “win,” and someone who doesn’t know them or their children, a Judge, makes the decisions that impact their lives. Mediation helps the parties address and resolve these issues in a way that helps them decide what can be best for them. Appointments are at their convenience, they can prioritize issues for discussion and resolution. and personal concerns which may not be legally relevant can be addressed.
Twenty years ago, some in the legal community questioned whether the more affordable family law mediation meant that it was second class justice or good just for poor or middle income people. Rather, it was (and still is) a smart way for any couple, regardless of income, to develop a settlement agreement that will work for them and their children. Mediation, by appropriately trained and experienced family law attorney mediators, is a proven way for couples, whether amicable or not, to manage their divorces in an efficient, cost effective, beneficial way.

Over the last year, the way courts operate in California has changed dramatically. It is not a secret that the California State budget woes are having a significant impact. Although the Judiciary is one of the three branches of government, it clearly does not get its proportional share of funds allocated to the state government.

Why Now More than Ever?

• In Family Court, the users, whether attorneys or people representing themselves, are feeling the impact of the budget cuts.
• Filing fees have increased and other fees have been added.
• There has been a significant reduction in court staff. The business offices are open fewer hours so the time to file paperwork in person or ask the clerks procedural questions in person or by telephone is much more limited;
• Hearings are being set farther out on the calendar than previously.
• If there is a legal “emergency,” there are some procedures for going before a judge on short notice during certain hours of the day and upon notice to the other side. However, if the issue is important to the parties but not a bona fide emergency in the court’s view, the judge will not rule.
• In general, Family Court is difficult to navigate by parties representing themselves. It is not designed, as Small Claims Court is, to be handled by lay people.
• Procedural rules, whether statewide or local, are not easy for a non-lawyer to understand and follow, and hiring attorneys to litigate is expensive.
• In the past, there have been limited legal services for low income parties, but the criteria for the cases that these dedicated and underfunded groups could take on is also limited. The Family Law Facilitator is available at the courthouses on a first come - first served basis to assist parties representing themselves to prepare their paperwork for court. The wait to be seen is typically very long.

Mediation for Divorce and Family Law Issues provides legal information from family law attorney/mediators; opportunities to consult with private attorneys and other experts on an hourly basis or a modest retainer; and the ability to design a process and outcome, which will work for both spouses and the children. Given all of the difficulties in getting through the court system, family law mediation, which has been a gaining popularity for decades, is an even better, more affordable and faster option now.

NCRC's Philosophy About Mediation

National Conflict Resolution Center’s (NCRC) Divorce and Family Law Mediation program has been in operation since August of 1994. The program was developed to provide services to clients of all income levels in a way that would be the least stressful and harmful to the clients and their children, if they have them. NCRC recognized that divorcing couples generally had to spend tens of thousands of dollars to have legal assistance in their divorce. Lower income individuals might be able to receive assistance through Legal Aid or the Volunteer Lawyer Program, but only in limited circumstances (e.g. for the custodial parent when the issue was custody). NCRC’s main goal was to provide a service that would help the family get through a legal, financial, emotional and life-changing event in their lives in a way that would minimize damage to either of them and/or the children, and at the same time, be less expensive and more cost effective than a full blown, adversarial litigated divorce.


The structure of NCRC’s program is one that:

• Allows the parties to make the decisions for themselves because they know more about what they and their children need than lawyers or judges;

• Makes sure that the parties have the legal, financial and personal information that they need to make good decisions. (They may be referred out to consulting attorneys for legal advice, divorce financial experts for financial advice, and therapists for personal and emotional support.)

• Provides a resource to the parties so they can understand the court timelines, form requirements, etc.

• Gives the couple a choice of mediators and a choice of locations. The mediators are family law attorneys, a family law retired judge and a licensed child psychologist, who provides confidential mediation services. The locations are in Downtown, El Cajon, Chula Vista, Encinitas and Vista.

• Allows them to maintain control over how and when they spend their money. They pay for sessions at the end of the sessions and they pay for documents whenever they are ready to do so (NCRC/WCRG doesn’t prepare the documents until the parties pay for them, but they may pay as their budget and interests allow.) We take Visa, MasterCard and Discover Card which can also make it a little easier for them.

The mediators and NCRC/WCRG administrative staff do their best to make the process smoother and easier for the parties. That’s what we do.

*West Coast Resolution Group (WCRG) is a new division of NCRC.  Retired Judge Susan P. Finlay provides mediation, private judging, settlement conferences through WCRG.

NCRC’s Family Law Mediation Panel has Expanded

      NCRC is pleased to announce that Frank Nageotte, Esq. a certified Family Law Specialist and Hon. Susan Finlay (ret.) have joined NCRC’s Divorce and Family Law Mediation program. Judge Finlay is part of NCRC’s division called West Coast Resolution Group (WCRG).

     Both have many years of experience as family law attorneys, and Judge Finlay also has additional experience as a Family Law judge. She sat in Chula Vista and then Downtown family Court.

     Both Frank and Judge Finlay will be providing mediation services, and Judge Finlay will also be available for Private Judging and to conduct Settlement Conferences.

     Parties using mediation do not need to have retained attorneys. If they do, it is their choice whether to have them attend the mediation sessions with them or not. They often have consulting attorneys who advise them outside of the sessions and review any paperwork prepared by the mediator. Such consulting attorneys may also attend sessions if both parties agree.

     For Private Judging or Settlement Conferences, at least one of the parties is required to have an attorney. If both parties have attorneys, it is expected that the attorneys will be active participants in the hearing or the Settlement Conference, unless they advise us otherwise.

     Parties can sign an agreement (Stipulation) letting the court know that they plan to use a private, retired Family Law Judge, that the decision will be entered into the court record, and will be enforceable.

     For more information about NCRC’s Divorce and Family Law Mediation services, you can go to www.ncrconline.com or www.westcoastresolution.com.

Guide to Support Guidelines, Part 2: Spousal Support

Many spouses struggle with the idea of paying their spouse support after the marriage has ended.

California is a no-fault divorce system, but the concept of spousal support dates back to when all divorces required fault. If the husband were at fault, he was required to continue supporting the wife, since women did not work and could not own property. This idea was maintained in American law as a form of punishment for the spouse considered at fault for the divorce.

Now, the purpose of spousal support has changed from being a punishment to being a way for each spouse to reintegrate themselves into single life as easily as possible. The purpose of spousal support is to allow a party who earns less to become self-sustaining gradually. Spousal support also serves to recognize the receiving spouse’s contribution to the marriage while assisting them towards financial independence.

There are two forms of spousal support, temporary and permanent. Temporary spousal support can be granted from the time of filing for divorce until judgment is entered. There are no guidelines specifically for temporary spousal support, but courts generally look at the same guidelines as are required for permanent support. However, the process is highly discretionary.

When a court awards permanent spousal support, there are ten statutory guidelines that they must consider. These guidelines include things like each party’s ability to maintain the marital standard of living considering their earning potential; the ability to pay spousal support; the debt obligations of each party; the length of the marriage; the age and health of the parties; and several other factors. If you would like to see all of the factors, you can find them at Section 4320 of the California Family Code.

As with child support, there is a computer program that can calculate how much spousal support is owed based on factors such as the income of each party versus their expenses. However, the court is prohibited from relying on the computer calculation alone; it must consider each of the ten factors from Section 4320 on the record.

How long spousal support continues typically depends on whether the marriage was short term or long term. A marriage is considered short term when the parties were married less than 10 years. When a marriage is short term, spousal support will usually be given for half the length of the marriage. When a marriage is long term, the judge does not set an end date for spousal support at the time the divorce is granted. Spousal support does end when the receiving spouse remarries or either spouse dies.

When using mediation, all of the above is flexible and subject to the agreements of the parties. If the parties both want to waive spousal support permanently, they can do so. This means that California will no longer have the jurisdiction, or the power, to grant spousal support between the parties in the future.

Parties can also choose to waive support but maintain California jurisdiction, set an end date even if they had a long term marriage, or any other arrangement that is agreeable to both parties.