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13

7 Things Your Divorce Lawyer Wants You to Know

7 Things Your Divorce Lawyer Wants You to KnowDivorce is rarely easy and rarely cheap. But there are things you can do to make the process less difficult and less expensive. After two decades of practicing Family Law and hearing other Family Law attorneys express concern (read: complain) about the same things, I’ve compiled a short list of things your divorce lawyer wants you to know so you can help them better serve you.

  1. Give me the straight scoop on your parenting. Don’t exaggerate the amount of time you spend with the children or the frequency that you bathe, feed, tutor, or otherwise care for them. I get that when both parents live in the same house, the division of labor often results in one parent being more hands-on with the children than the other. If the other parent was the primary care-giver, I need to hear it from you, not opposing counsel in front of the judge. Whether you weren’t as attentive as maybe you could/should have been or you weren’t available because of employment/school/health issues/etc., the result is the same. If you want to have a strong parenting role after the divorce, we have to address the changes that need to be made and available resources for making those changes. On the other hand, don’t minimize the other parent’s parenting role. Unless there are safety issues, the children are going to be spending significant amounts of time with the other parent. The more accurate the information you provide me, the better able I will be to help you craft a proposed custody arrangement that takes into account the strengths of the other parent and the real weaknesses that need to be addressed.
  2. Being organized saves you money. If I ask you to bring me a summary and documentation of your bills, debts, and expenses, please don’t drop off a shoebox stuffed with documents. Especially dog-chewed, coffee-dribbled, food-splattered documents. (Think about how you would feel if I sent you a document smeared with a bit of my breakfast jelly or that had a bit of squashed bug on it from when I used it as a fly-swatter. Disgusting, right?) Don’t pay me to sort through your stuff – or for the gloves I might have to purchase to do so! Organize all in chronological order, substitute copies of what is too gross to touch, and attach a typed summary so I know what I’m looking at. The same goes for text messages, emails, and notes that you have made for the case.
  3. Don’t take it personally if I interrupt you. I’m not saying it’s okay for me to be rude and I’m not saying I don’t care about your history. But I am very aware of the fact that every minute we speak costs you money. While I do need to have all relevant information regarding your circumstances, if our conversation is going off on a tangent, is repetitive, or otherwise not serving you well, I’m going to move things along.
  4. Don’t let me get you more than you want. If you don’t think you can do a 50/50 parenting schedule because of your own conflicts or how you think it would affect the children, make that clear to me. Just because I can obtain a more expansive visitation arrangement doesn’t mean that is what is best for you or your children – help me understand the dynamic. And the same goes for property – don’t get caught up in arguing for half the stuff, then “winning” a property dispute to get something you don’t care about or have to pay to store. That’s not really a win. Help me help you save money by only pursuing what is really important to you.
  5. Know that I’ve heard it all before. Don’t “spare me” the uncomfortable points. While I’m not asking you for intimate details, it is relevant if you engage in an alternative lifestyle, have addictions, phobias, or any other situation that you are embarrassed about. I can’t properly advise you and help you navigate through situations  I am unaware of. And to make matters worse, if such topics come up for the first time from your spouse’s attorney or, worse yet, in front of the judge, you suffer the humiliation you were seeking to avoid as well as damaged credibility.
  6. Tell me if you don’t understand. And don’t apologize for what you do not know or this being your “first time through this.” Hopefully, it will be your only time through this – I’m not interested in helping you get good at it. I’m interested in helping you get through it with the least amount of difficulty possible given the circumstances. Remember: I know nothing about how to navigate in your world. Whether you teach school, make shoelaces, or clean teeth, I would have a hundred questions to ask you if I were trying to understand and help you do your job. If I have explained it and you don’t understand something, ask for clarification. As many times as you need to. Just like I need to understand your circumstances and your goals in the matter, you need to understand the procedure and what I’m doing. We are a team – it takes both of us to get this done and we have to be on the same page.
  7. You have to tell me the truth. If I’m going to be able to do my job and obtain the best legal results possible given the facts, I have to actually have the facts. All of them. Don’t lie to me. Ever. About anything. Don’t sugar coat, share information selectively, minimize the negatives or exaggerate the positives. Just give it to me straight. And I promise I’ll do the same in return.

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6

Divorce: How You Can Help a Friend Going Through It

How You Can Help During DivorceOften when we hear about a friend or loved one getting a divorce, we just don’t know what to say or do. We want to be supportive, encouraging, helpful –  but struggle with being presumptuous or intrusive in our attempts to offer assistance.

Recently I was invited to speak at a Stephen Ministry meeting when the group was going through training on how to minister to and assist people in the community who are dealing with divorce.  The group leader asked me to help them understand the process of divorce and suggest ways to help those going through it. After two decades of practicing Family Law and working with men. women and children who are going through the process, it wasn’t difficult to come up with a list of challenges that divorcing parties often need help with!

When making an offer of help, be specific. While saying things like Please call if you need anything  or Let me know if I can help, may be sincere offers, they’re generally not helpful offers. Such statements shift the obligation. They require the person needing assistance to initiate contact and request a favor. Many are not comfortable with one or both of those actions. Here are some suggestions for specific offers to make and actions to take during the different stages of divorce that can lighten the load a bit for the divorcing friend – whether male or female – you seek to help.

PRIOR TO A DIVORCE ACTION BEING FILED

  • Encourage your friend to see a counselor if she seems to be struggling emotionally. Whether your friend wants the divorce or not, there is much to deal with and process. Not only her own feelings – which may include combinations of sadness, grief, fright, guilt, abandonment, loneliness, depression, confusion, bewilderment, anger, rage, jealousy, vindictiveness, relief, happiness, optimism – but the feelings of her children, friends and family members have to be dealt with. Even if your friend seems to have a good support system of friends and family, it is helpful to have someone to talk to who is not vested in the situation. In other words, a counselor doesn’t love your friend. He’s an objective ear trained to listen and provide feedback and tools to help one navigate evolving situations. A counselor doesn’t start out with a bias about whether or not a divorce or reconciliation should take place, and he doesn’t have an existing opinion about  a spouse. Counselors have the ability to assist from an objective viewpoint – something family and friends often aren’t able to do.
  • Encourage your friend to seek the advice of a Family Law attorney. Just because you get information from an attorney doesn’t mean you have to get a divorce. It is a way to understand what one’s legal rights are with regard to custody, child support, property division, alimony and, in cases where domestic abuse exists, protective orders. It’s also helpful to understand how the process of divorce works in the legal system so that one can have realistic expectations if matters go forward. In addition, an attorney can provide helpful tips regarding behaviors that help or hurt a case during the process. For tips on finding a good Family Law Attorney, click HERE.
  • Offer to go with them to a consultation. Meeting with an attorney can be intimidating for some. Your friend might welcome the moral support of your presence – and a second set of ears can be an asset. It’s easy to miss information offered if one is still processing what they have heard previously, are focused on what they will ask next, or are dealing with their own nerves.
  • Focus on faith. If prayer is meaningful to your friend and something you are comfortable with, ask what she would like you to pray specifically about. The answer may surprise you – as well as give you insight into additional ways you might be able to assist.

WHILE THE DIVORCE IS PENDING

  • Go with your friend to observe a similar court proceeding, conducted by the Judge assigned to his case, prior to his own matter being heard. Seeing the courtroom environment ahead of time, witnessing the judge’s demeanor when the focus is on other parties, and seeing how the process works can help alleviate fear of the unknown and diminish trial day jitters.
  • Ask if they would like you to attend their hearing to be moral support in the courtroom. Such hearings can get personal, so you should ask if they would be comfortable with you there, but often those who would normally be their moral support are also witnesses who will not be allowed to stay in the courtroom with them.
  • Offer to babysit. There is a lot going on for parents during the divorce process that can be even more challenging when they don’t have child care assistance for activities that are not part of their regular routine, such as:
    • Meetings with their lawyer
    • Attending counseling or support groups
    • Attending divorce-related parenting classes
    • Attending mediation
    • Needing some alone time
  • Take their children for an outing. During a divorce, a parent may have to sort through property that is going to be divided and/or pack up belongings. Some of these chores are less difficult to do when the children are not present.

  • Provide an easy meal – something that can be warmed in one container or frozen if not eaten immediately. This is a gesture that will be well-received on long work days, court days, or as a “thinking of you” gesture.
  • Let them know you remember. A quick phone call, text, email, etc. on court day or the night before to let them know you are thinking of them and/or praying for them will be appreciated.
  • Gift them comfort. Provide a small object they can feel in their pocket to remind them they’re not alone, such as a medal, worry stone, cross, shell or an inspirational saying.
  • Gift them whimsy. Drop off or send a whimsical lift-your-spirits gift such as a flowering plant, funny book (The Best of Herman is hard to beat!), or a silly refrigerator magnet.
  • Check the dates. Find out if there any special dates coming up – birthday, anniversary – that might be especially difficult or lonely for them. A lunch outing or enjoying a light movie together might be a welcome invitation.

AFTER THE DIVORCE

  • Acknowledge a final Order doesn’t mean finality. Often the moral support team drifts away after the “crisis” is over. But changes for those who are recently divorced are ongoing. There may be financial struggles, parenting issues and other challenges which result from one person running a household that used to be run by two. The occasional just-checking-in/thinking-of-you/praying-for-you type communication will be appreciated.
  • Remember them on holidays. If they didn’t have children and local family, some of those first holidays can be lonely. If they do have children, the holidays the children spend with the other parent can be very difficult.
  • Babysitting needs are ongoing. Especially for parents who have the children full-time because of the other parent’s unavailability due to court restrictions or geographic distance. Some of the weekend or after-daycare-hours needs for childcare help include counseling sessions, support-group meetings, and educational pursuits. The ultimate gift for those recently divorced parents may just be whisking away their kids for a time, thus enabling the parents to revel in the luxury of having their home – and potentially an uninterrupted bubble bath – to themselves for a few hours!
12

Child Custody: 5 FAQs Answered

5 FAQs about Child Custody AnsweredChild custody battles are often the most difficult part of divorce proceedings. Property can be divided or sold, debts can be assigned to one party or the other, but how custody/visitation plans are structured is much more complex. As  mothers and fathers contemplate divorce or (if not married to each other) paternity actions, they often find themselves with numerous questions. They want to know how things work legally, what their rights are regarding the children, and what rights the children have.  After 23 years of practicing  Family Law, I have worked with hundreds of divorcing parents and noted some concerns are universal. Here are 5 questions that most parents have about custody.

  1. At what age can a child decide which parent the child wants to live with?

Hopefully no parent is actually asking a child  to make the decision of which parent they would like to live with. That’s like asking them to pick which parent they like better – it’s a lousy position to put a child in even if they have a clear preference. Having said that, most states have an age where a child can express what their preference is, but ultimately the judge still makes the final decision. The judge is not bound by the child’s request if he or she does not feel that it is in the best interest of the child to place the child as requested. The judge will take into consideration the ability of each parent to care for the child, what the environment of each is, and the reasons the child has a preference. The older a child is, the more likely the judge is to honor the child’s request if it is not detrimental to the child to do so. While each state can make its own  laws regarding  custody and the age at which the court gives deference to a child’s preference, many states take the position that by the time a child  is twelve years old they have the maturity to express a preference and their reasons for having a preference with regard to living with one parent or the other. Even states with a stated age usually have provisions in their laws which allow the judge to make a decision contrary to the child’s request if the child does not have the maturity to properly express a preference and/or if the request would not be in the child’s best interest.

  1. Are mothers more likely to be awarded custody than fathers?

There was a time when the answer to this question would have been yes, but that is generally no longer the case. While there may be individual judges that have gender biases, most judges start with the premise that a child should have as much contact with both parents as is possible. While  fathers are awarded custody more often than they once were, the general trend is toward co-parenting options. Whether it is called joint custody, co-parenting, shared parenting or another name, the intent is to ensure that the children have access to both parents and that both parents are allowed to actually parent versus being someone the children simply visit. If the parties are unable to cooperate, one parent has a history of addiction or abuse,  or the parties are unable to communicate because of work or geographic hindrances, the judge will award custody to one parent and an appropriate visitation schedule to the other taking into account the specific circumstances.

  1. Will the judge split up siblings?

Most judges try to protect children by keeping things as stable as possible in the midst of divorce and will not split up siblings casually. But custody is determined on a case-by-case and child-by-child basis. Some situations when a judge might consider splitting up siblings are (1) if children of a certain age request it, (2) if there is substantial/destructive conflicts between siblings, (3) the children have different needs that can best be met by a particular parent, and (4) other facts specific to the case that would result in it being in the best interest of the children to do so. Even if custody of the children is divided between the parents, visitation can still be synced in a way that the siblings are together on weekends, holidays and summer school breaks.

  1. Will the child have to testify in court?

It is not likely. Judges have the discretion to speak with a child in their chambers if they want to receive information from the child and/or a child or parent has requested that the child’s input be received. Depending on the state, attorneys, the child’s Guardian Ad Litem,* or a court reporter may be allowed to be present while the child is being interviewed. The judge tries to balance the parents’ rights to due process with protecting the child from the pressure of testifying in front of parents and any repercussions that might result from testimony that displeased a parent.

  5. Can a custody order be changed in the future?

Yes. There are two ways a custody order can be changed. First, if a parent believes that the judge made a legal mistake with regard to the custodial decision made at trial, the ruling can be appealed if done so within the time frames set forth in the state law. Second, and more common, is if there is a change of circumstance since the original order that affects the best interest of the child.  Typical changes that could warrant modifying the custody order include a problem arising with the custodial parent, a parent relocating, or a child getting older and expressing a preference. In either case, a Family Law attorney should be consulted  to ensure that the parent understands what needs  to be proved, what the legal procedure is, and the chances of being able to accomplish the desired modification.

*A Guardian Ad Litem is a representative for the child who serves the dual role of representing the child's position and advocating for what's in the best interest of the child even if it conflicts with the child's preference.

If you found this article helpful, you might like:

Divorce Through a Child’s Eyes      

Divorcing Parents, Listen to the Judge      

5 Myths About Divorce  

 

23

Should Children go to Jail for Refusing to Visit a Parent?

Should Children go to Jail for Refusing to Visit a Parent?

Should children go to jail for refusing to have a relationship with one of their divorced parents? That’s close to what happened recently in Bloomfield Hills, Michigan. Oakland County Circuit Judge Lisa Gorcyca, seeming to be at her wit’s end with three children, ages 14, 10 and 9, who refused to comply with her order to have lunch with their father, were found to be in Direct Contempt of Court. They were sentenced to do “time” in a juvenile facility until they comply with the judge’s directive or until further order from the court – which Judge Gorcyca stated may stay in place until the children are eighteen.

I don’t know Judge Gorcyca  or any of the participants in this case. Like most others who see the headline about children being thrown in jail for not wanting to visit a parent, I was shocked enough to do a double take. As a Family Law attorney, I immediately asked myself: “What’s the REST of the story here?”

Reading the article at Yahoo Parenting and hearing the Detroit’s Fox Station report still left me with more questions. How could a family law judge who cared about children throw them in jail just because they felt strongly about not visiting with a parent? Especially when one, the 14-year-old, states that he has seen his father be violent and hit his mother?

It was only when I read the transcript from the actual proceedings that I started to get the bigger picture. It was clear this judge had been dealing with this family for years. She believed the children had been brainwashed by their mother who, apparently, has consistently been negative about the children’s father and has reinforced and encouraged their hostility toward him. “Parent Alienation” is a term often used to describe such conditioning. Not being a psychologist, I’m not going to try and explain that term with regard to any psychological criteria it may involve, but as a Family Law attorney who frequently represents children as a Guardian Ad Litem, I can tell you I have had first-hand experience with such damaging parental behavior.

From what I have witnessed, one parent deliberately undermining the relationship between the children and the other parent is often a result of a parent hating the other spouse to the point that they can’t (or choose not to) see the damage their venomous behavior has on the children. They hate the other parent more than they are concerned with the emotional well-being of their children. Although most parents engaging in such behavior will swear that they are doing it for their children, to protect their children from that other horrible parent. The deliberate creation of the “us against him/her” culture can be a bonding force between children and a parent which the offending parent selfishly enjoys. When the outcast parent is a good person who really loves the children, it is a devastating loss for children.

If you’re not sure what I’m talking about, following are examples I’ve heard from parents talking to children I have represented. Imagine each being said over and over in different ways and reinforced by other like sentiments:

  • He doesn’t love you, he’s only trying to get custody so he doesn’t have to pay child support;
  • She’s only trying to get custody to get back at me because she knows that I can’t live without you kids;
  • I’m the one who has always been there for you and cared for you – he wanted me to have an abortion and I refused because I loved you so much;
  • Mommy would be so, so sad if you had to go live with him, I would cry every day that you were gone – and he’s trying to take you away from me.

So, when someone with years of experience in dealing with such-minded people sees the damage being caused to children who are being taught to harbor hatred toward someone who loves them, is there any way possible they can undo that damage? Apparently Judge Gorcyca fervently hoped that if the children just had lunch with their father, there would be potential for the relationships to take a turn. But the kids weren’t having it. Even though the mother (apparently for the first time) was encouraging the children to do as the judge was ordering, the children just would not. Even in a desperate moment the mother couldn’t undo the conditioning she had fostered that, the judge implied, had gone on for years.

Defying a judge’s order while in court is, indeed, Direct Contempt of Court – punishable in most states by both fines and incarceration. The judge in this case actually sentenced each of the children to be housed in a juvenile facility called Children’s Village, emphasizing they would have to use public bathrooms, lose all comfort, and not see their mother or their siblings. At the time of the article, the children had been incarcerated for two weeks and their mother (and anybody on her side) was prohibited from visiting.

Is this going too far? What are the alternatives if counseling doesn’t work and the offending parent will not cooperate in facilitating a relationship between the children and the other parent? From the children’s point of view, doesn’t it seem like this is just one more horror that is the father’s fault, thus, increasing their animosity toward him? Is there a way to punish the offending parent without punishing the now-defiant children?

There are way more questions than answers here. Indefinite incarceration for children who are behaving as a parent taught them to behave doesn’t seem to be a good answer. But in spite of the fact that I think the judge got this ruling wrong, I see the emotion that drove her there – my guess is it started because of how much she cared for children.

If you want to refer to this as a rant, know that it’s not a rant about a judge who screwed up and, in my opinion, should modify a particular ruling. It’s a rant about selfish parents who get so consumed by their own animosity for the other parent – whether justified or not – that they cruelly take away the child’s other parent by deliberately alienating the child from that parent. They let their children think that one half of the team that created them is scum. What, long term, does that child think of himself? How does that prepare daughters and sons to have healthy relationships with future spouses and offspring? How does it accomplish anything good for anybody – except maybe creating satisfaction for the parent who “won” by getting his or her children to hate the ex-spouse with the same intensity that he or she does?

This article has nothing to do with domestic abuse and other terrible situations spouses sometimes find themselves in – circumstances that require they protect their children. This article is about parents who use society’s loathing for such situations to their advantage by manufacturing facts and manipulating children to accomplish their end goals of punishing their exes – or just getting those exes out of the picture any way they can so they don’t have to share the children.

Who should REALLY go to jail under such circumstance??

10

Divorcing Parents, Listen to the Judge

Divorcing Parents, Listen to the JudgeIn case you’re wondering whether or not judges care about the orders they issue regarding your children, I’m here to tell you that, from what I have seen in over two decades of practicing Family Law, most of them do. That’s not to say they’re not thoughtful about the rulings that affect you and your soon-to-be ex. It’s just that you and your spouse chose to be married, and at least one of you is choosing not to be. The children had no choice in either matter. And yet they are the ones who are going to have to go back and forth between two homes. And they are the ones who have to see the two people they love more than all else in turmoil. It rocks their world.

Although there are ways to reduce the world-rocking, there is no way to unrock it no matter how necessary the divorce may be or how well everybody is getting along. But there are ways to rock it so violently that it tips right over. Sometimes in the midst of the raw emotions that go with divorce, parents don’t notice the effect on their children when they talk badly about the other parent. Judge Michael Haas noticed. And many other Family Law judges have noticed. I don’t know the now-retired Judge Haas,  but I have witnessed the truth of the words he shared in the timeless article* below:

Divorcing Parents, Listen to the JudgeSo, as my buddy over at Brockmeyer Law Offices says:

Divorcing Parents, Listen to the Judge*Thank you, Maria Polson Veres for sending me this article!

Related:

Divorce Through the Eyes of a Child

Divorce Through the Eyes of a Child

17 Things Teachers Want Divorced Parents to Know

17 Things Teachers Want Divorced Parents to Know

Children of Divorce: 5 Things Parents Should NEVER Say to Them

Children of Divorce: 5 Things Parents Should NEVER Say to Them

 

10

10 Things NOT to Say to the Friend Who Doesn’t Want the Divorce

10 Things NOT to Say to the Friend Who Doesn't Want the DivorceWe want to show compassion for friends who tell us they are getting a divorce, but often we don’t know how to respond. It’s especially difficult when it’s clear they don’t want the divorce – that the choice was made by their spouse. Often the first thing that pops  into our head  – an unvarnished truth, perhaps? – is the very thing we should not say as a first response to the news. Here are ten statements that are often blurted out in a well-meaning attempt to offer comfort – followed by what goes on in the mind of the friend (who doesn’t want a divorce) when they hear it.

1. You’ll be better off without him.

The unspoken  response: In what way? Better off financially without half of the family income? Better off with only seeing my kids half the time as they shuttle back and forth between two houses? Better off coming home to an empty house, an empty bed? Define “better off.”

2. You can do better than her.

The unspoken  response: I don’t want “better” – I want what I thought was the best – the person I love.

3. You’re better than he’ll ever be.

The unspoken  response: Then we must both be crap, because clearly I’m not good enough for the person who’s “not as good as me.”

4. The best revenge is being happy.

The unspoken  response: Shut up, OK? Right now it flippin’ hurts and “happiness” is a concept I can’t begin to imagine.

5. He’ll be sorry one day.

The unspoken  response: Uh, which day is that? I’m pretty sure it won’t be tomorrow. Or next Tuesday. As a matter of fact, I don’t think he will be. Ever. You need to work on your pep talks.

6. Time heals all wounds.

The unspoken  response: I’m not “wounded,” you moron – I’m decimated. Does time heal decimated?

7. Have you prayed about it?

The unspoken  response: Until my knees are raw and she’s still leaving me. My prayers haven’t been answered. Does that mean God doesn’t love me either? Just how unlovable AM I??

8. Is there another woman/man?

The unspoken  response: Why would you immediately ask that? Do you know something? Does everybody know something?

9. Call me if there’s anything I can do.

The unspoken  response: Yah – OK. Be expecting a call around 1:00 in the morning – I’ll be asking you to come over and fix my broken heart so I can get some sleep. Or, better yet, let me give you a call about fixing my spouse – make her change her mind about ending our marriage. Can you do that?

10. You don’t have guns in the house, do you?

The unspoken  response: Is that suppose to be funny? You may not have noticed I’m not in a chuckling mood. And if it’s NOT suppose to be funny, who are you afraid for – my spouse or me? I don’t need you to put crazy thoughts in my head – there’s already plenty to deal with in there.

Whether you are thoroughly familiar with your friend’s marital history or didn’t see it coming, there are no magical words to be offered upon first hearing the news. If the news is being shared via phone or in writing, offer a simple: “Oh, Friend, I am so sorry” and let them make the next remark – one that may give you better guidance with what to say next. If you are told in person, and your relationship is such that physical contact is appropriate, sometimes it’s better to say nothing. Sometimes an immediate hug – an available shoulder “to cry on” – better conveys a wordless I hurt for you and with you.

Related:

What NOT to Say When Testifying in Family Court

What NOT to Say When Testifying in Family Court

What NOT to ASK an Acquaintance Who's Getting Divorced

What NOT to ASK an Acquaintance Who’s Getting Divorced

10 Ways to Impress Your Family Law Judge

10 Ways to Impress Your Family Law Judge

21

5 Tips From a Family Mediator for Your Divorce Mediation

Tips From a Family Law Mediator

Divorce is tough enough without having to endure a public battle and reliving all the strife in a courtroom. An alternative to that knock-down-drag-out trial is mediation – the process of both parties sitting down with a trained individual who can help you arrive at agreements that best suit your circumstances. I’m not saying it’s easy – not much about divorce is – but it’s a very good option to explore if you want to get through the process with less damage than a trial can inflict. Having described the process and it’s benefits in previous articles, including why my perspective changed after participating in a mediation as a party, I thought I’d pass on some tips from an expert.

Kevyn Mattax, a highly regarded Family Law attorney and certified Family Mediator in Oklahoma City, has some tips to help you get the most out of your mediation experience.

1. Understand the process and what it looks like. Have a discussion with your attorney about not just what mediation is, but how it physically works. Who will be there? How is it set up? Does the mediator provide separate rooms or will you all be in one room? Are there “joint sessions” or does the mediator caucus? Does the mediator provide refreshments or should you bring your own? No question is too silly or basic.

2. Plan ahead for what you might want/need while you are at mediation. Take gum, headache medicine, a bottle of water. Take a charger for your cell phone or your laptop. You may be there for many hours. If you tend to get warm or cold easily, dress in layers and bring a light sweater. If you have young children, make sure that you have someone to pick them up and care for them if the mediation goes longer than you had planned. Do not bring third parties to the mediation unless that has been approved in advance.

3. Come prepared. Make sure your attorney sent the mediator a memorandum with as much helpful information as possible (in advance). Ideally, you, as the client should have reviewed and approved that information. Meet with your attorney in advance and go over your position. Know all of the pros and cons and be prepared with your position, yet, work hard to be flexible and open to compromise at the mediation, if need be. Make sure that all necessary exhibits and helpful materials will be at the mediation. Be as organized as possible so that you can focus on the task at hand. The better informed you are about all of the issues, your assets and liabilities, etc. the smoother the process will be.

4. Expect to feel emotional. Get a good night’s sleep the night before. Mediation can be exhausting and mentally draining. Take whatever steps you can to make sure that you are clear headed. Get up and walk around and take mini breaks during the process. Be honest with the mediator  – if you are feeling anxious, overwhelmed, stressed, tell him/her. Mediators are not mind readers, so just speak up and ask for a break and then share your concerns in private. Mediators are expecting these emotions from the parties and have techniques and tips to share with you to help alleviate stressful reactions. Make sure and stay hydrated and eat enough during the day to maintain your blood sugar.

5. Anticipate the resolution. When one side makes an offer, know that there are really only three possible responses: accept, reject or make an offer. Be prepared to go in slow increments at first. Any movement toward resolution is encouraging. Understand that concessions must be made. Concessions are the language of cooperation. Trust the process. Everything that happens at mediation is confidential so you can let your guard down and be willing to truly attempt resolution with the assistance of a good mediator.Tips From a Family Law Mediator

Kevyn Mattax has practiced law for over two decades in the Oklahoma City area. Her practice focuses on  domestic relation issues.  She is one of the premier certified Family Mediators in Oklahoma, along with being a highly successful attorney.  Having previously undergone the trauma of her own custody and divorce litigation, she decided to turn  a negative experience into a positive career. For more information about services click HERE.
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The ME in Mediation – a New Perspective

The ME in Mediation - a New Perspective

Just when I thought I knew all there was to know about mediation, I learned something new. I know that mediation, the process of resolving legal issues with the assistance of someone trained to help warring parties find creative solutions, is often better for divorcing spouses than having a trial. I have served as a mediator in numerous custody cases. As a Family Law practitioner, I have attended dozens of mediations while representing clients. As a Guardian Ad Litem for children, I’ve sat through mediations between the parents in case I could be of assistance with child-related issues. And as an adjunct Family Law professor, I have taught the mechanics and benefits of mediation to law students for seventeen years. I’ve even written articles about it, such as Take the Bat Out of the Battle, extolling its virtues for parties going through divorce.

So what is there left for me to learn? What’s missing from all that hands-on experience? The one perspective that probably matters the most. I had never participated in mediation as a party – as the one who actually had something at stake. Until last month.

I was in court to collect money that had been owed to me for a year and a half because I didn’t see the situation changing on its own any time soon. When the judge called our case, he asked us if we would like to mediate the case before having him hear it. I mentally rolled my eyes (it’s not good to actually roll your eyes when the judge asks a question) and asked myself what would be the point. I had already made two previous agreements with the individual over the past two years, and neither one had been honored. Besides – I was right. She had absolutely no defense. This was a slam-dunk case. I could be out of there in five minutes if it went to the judge. Who knew how long it would take if we tried to mediate it. As in, try to make another agreement with somebody I no longer trusted.

I looked over at my opponent and she shrugged – not quite sure what mediation was all about. The judge made the decision for me, suggesting that we give it a try. Not following the judge’s “suggestion” is about as well-received as eye-rolling. So off we trotted with a mediator who was standing by. The judge was already dealing with his next case.

My opponent and I sat across from each other at a conference table and the mediator sat at the head, forming a triangle with us. He started patiently explaining what mediation was, how it worked, and what was expected of us. I was still in professional attorney mode – and quite annoyed that I had to sit through a talk that I had given myself numerous times. I resisted the urge to “help” move things along.

And then we each had an opportunity to sum up our positions. To my shock and horror, I started getting a little emotional. What the . . . ? Attorneys don’t get misty-eyed when they talk. It just isn’t . . . done. I realized that it was less attorney-opponent and more two people who didn’t agree. Sure, we had “exchanged positions” before – but always through brusk phone exchanges or carefully worded emails. Never sitting across a table while looking at each other. Nothing like seeing a wince, frown, surprise, hurt rolling across the face of somebody you’re talking or listening to for a new perspective. Hearing is more than just taking in sound – it’s processing the words, registering them.

Here are a few things I learned about mediation from my new perspective:

  • We can make erroneous assumptions about the other’s position. Somehow, in our heads, those assumptions turn into facts. Sometimes listening to each other in this environment, having had an opportunity to prepare for discussion on some difficult topics, allows you to hear something new in what you have already listened to.
  • Being heard can be a fair trade-off for some compromise on the issues in dispute. It’s very satisfying seeing someone really get a point you’re trying to make – especially if you’ve been trying to make it for some time and it just wasn’t being received.
  • Getting it is enlightening. And potentially humbling. But when you finally HEAR what is being said in the way it was intended – a point the other has been trying to make but either not saying well or just not saying it when you were receptive to hearing it – it can be empowering. It can free you up to focus on the issue versus focusing on the way you feel about the other person.
  • Negotiating toward compromise says nothing about who is right. You’ve heard the saying: Do you want to be right or have peace in your life? There’s a lot to that. Proving you’re right takes a lot of energy. And what’s the payoff if you succeed? A moment to be savored? Served up with a side-dish of increased resentment from the one you need to work with to find a solution for disputed issues? Not helpful.
  • “Fair” is it’s own reward. Taking the “right” out of the resolution – legally right, morally right, just plain right – and crafting something fair results in two winners.

Everything I formerly advocated about the mediation process for divorcing couples still holds true: you craft a better solution for your family than some judge who doesn’t know you can; you can get creative with the resolution in a way that the judge cannot; you have some control over the outcome as opposed to tossing the dice with the judge’s orders, you have an opportunity to be heard by the other in a way that you might not get in the courtroom.

But what I never said before – because I didn’t know it – was that going through the process was somewhat healing. And I don’t mean in a join-hands-kumbaya sort of way or a slap-on-the-forehead-arms-shoot-up-I-am-HEALED sort of way. I mean the knot in the stomach I entered the room with was gone, anger was dissipated, and both had been replaced by a sense of accomplishment. I left the room . . . satisfied.

I’m not telling you that Mediation is magic dust. It’s not something you can sprinkle on years of hurt, mistrust, betrayal, anger, or other raw emotions to make all the bad stuff disappear. I am telling you it’s a way to start a conversation that can have a different ending than others you’ve had before. And I’m telling you it’s an opportunity to be heard and craft a resolution for your family, and about your stuff, that is personalized in a way a judge just can’t accomplish. I’m telling you this process does not have the tear-each-other-to-shreds result that a trial can have. And I’m telling you, most important of all, that you can leave the mediation room with dignity intact, a desire to work together better for the children, and a sense of satisfaction having crafted a solution you believe works for your situation.

I can’t offer any solace regarding how you might feel leaving the courtroom if you choose to go to trial – because that’s an unknown.

Related:

Take the Bat out of the Battle (with mediation)

Laudable Listening

Marriage: Troubled Waters or Sea Glass?

8

Divorce: Property Division 101

Divorce: Property Division 101Dividing up property that was accrued during marriage is one more difficult issue that has to be dealt with during divorce. Understanding how the judge would do it and what your options are for doing it without the judge’s intervention can make a difficult task a little less difficult. In spite of the fact that if you and your spouse could easily work things out together you probably wouldn’t be getting divorced, working together to divide the property could save you headaches, court time, attorney fees, and the (potentially) unsatisfying result of a judge’s division.

Most states have laws providing for ‘equitable distribution’ of marital property. (You have to look at your state laws to determine whether ‘marital property’ is everything that was acquired during the marriage or if exceptions apply.) The term ‘equitable’ means that it has to be fair, but not necessarily exactly equal.

FACTORS TO CONSIDER WHEN DIVIDING PROPERTY

Factors that judges can consider when they determine what is a fair way to divide the property include:
• Who uses the property
• How the property was acquired
• If there’s debt on the property
• If there is sentimental attachment to the property
• If one party is seeking particular property out of vindictiveness
• What other property there is to divide
• How the overall debt is being divided
• Any other factor that is relevant to specific property

HOW PROPERTY IS DIVIDED

There are 3 different ways to divide most property (leaving the complex issues regarding dividing businesses and pensions for another time). Terminology may differ a little from state to state, but the basic concepts are the same.

1) In kind: Dividing like items in half. Example: A set of eight Flintstone juice glasses could be divided by giving four to each spouse.
2) Set-off: Property that is not the same divided in such a way that each party is getting assets that have comparable value. Example: Wife receives a bedroom set worth $1500 and husband receives a kitchen table with chairs and a Best of the Brady Bunch DVD collection with a total value of $1575.
3) Alimony in lieu of property. In other words, money for stuff. Example: Wife is awarded the house that has equity in the amount of $10,000 and husband receives $5000 in cash (either from other marital sources or refinancing the house).

HOW TO VALUE PROPERTY

Unless you are already in agreement about how everything will be divided (and if you were you probably wouldn’t be reading this) you should determine what the value is of the major property items such as a house, vehicles, furniture, financial accounts, antiques, tools, big appliances, collections, jewelry, art, etc. (Nobody is interested in valuing your linens, clothes, and Tupperware unless there is something pretty special about them.)

For most valuable assets – things like houses, land, and antiques – an appraisal will probably be necessary. Check with your attorney, friends/family, or other professionals you know for a referral to a qualified appraiser.

For vehicles, whether automotive, recreational, watercraft or aircraft, you will be able to find valuation sources on-line. Enter the type of vehicle you are looking to value into a search engine with the word ‘valuation’ and several sources will probably pop up. You will need to put in some information, like mileage, condition, etc. in order to get a valuation range.

For the rest of the stuff, you have to figure out an approximate value on your own. We’re talking garage sale prices here. The judge isn’t going to consider replacement value or what you paid for an item three years ago and neither should you. If you aren’t a savvy garagesaler, other sources to get ideas on values for used property are:

• Ebay
• Craig’s List
• Classified Ads
• Pawn shops
• Thrift stores

DIVIDING THE PROPERTY WITHOUT THE JUDGE

Once both spouses have gotten lists of property and best-guess values, you can negotiate to divide it up using the same factors a judge would consider. Be reasonable and understand that each of you will probably have to make compromises to get the job done. If there aren’t obvious choices for some of the property that you would both like, take alternating turns making a pick. Or flip a coin if it is one item that just can’t be decided. If you can’t agree on everything, avoid the temptation to make all-or-nothing ultimatums. Every agreement made saves money, so agree upon what you can and reduce the number of decisions that you have to pay lawyers to quibble about.

Tip: If it’s easily replaced (think Mickey Mouse Chip Clip – and yes, that’s a real example of something I saw disputed) or easily copied (pictures and home movies), let it go or split the cost of making duplicates. Save your money, court time, and energy for the really important stuff – like keeping kids safe and protecting your future.

ONE LAST THING TO THINK ABOUT

If you need more motivation for dividing up your own property as opposed to having a judge do it, consider some of the rulings I have witnessed:

• The judge told the parties to meet at a certain time and alternate picks (gee, how much money did it cost them to go to court to find out how to do that??)

• The judge looked at the items that each party had inflated values on (assuming they would be awarded to their spouse) and gave those items to the person who over-valued it, adding the value they had assigned it to their side of the asset ledger sheet. (Just another reason to make sure you use good faith when assigning values to your property!)

• This one had a jaw-dropping effect: the judge looked over the property lists and awarded anything he thought the wife would like (sewing machine, scrapbooking stuff, antique lamps, etc). to the husband. The wife was awarded all the hunting gear, car repair tools, the pontoon boat and a variety of other things that had a male vibe about them. After finishing his list of who would get what, the judge looked at the husband and wife and said:

“Feel free to trade things, if you like.”

Related:  Alimony 101     10  Ways to Impress Your Family Law Judge

 

7

5 Ways to Help Your Child Through Divorce

5 Ways to Help Your Child Through DivorceDivorce affects children in a myriad of ways. Just because they don’t seem depressed or their grades don’t crash doesn’t mean they are unscathed by what is going on around them. As a matter of fact, more than one psychologist I consulted with when representing children (whose parents are going through  divorce) has told me that grades going up during this time can actually be a red flag – it could indicate an increased focus on one small section of the child’s world that he can control when there is so much chaos in his environment.

Divorce for adults can be difficult, painful, and confusing. For children, we have all that plus a lack of understanding regarding the reasons or need for divorce and a lesser ability to process life events.There’s not an easy way to get everybody through it. But there are some things you can do to help make it less difficult for your child. Here are five.

1. Let teachers and child care workers know about your family situation. They spend a significant amount of the day with your child and  might pick up on behavioral changes in their environments that they could alert you to. It also allows them to understand changes in your child’s attitude or demeanor which might otherwise be attributed to willful misbehavior.

2. Explore support groups. While counseling can be helpful and sometimes necessary for children, support groups serve a different purpose. There are many good programs available that help children transition through divorce by participating in groups with other children their age that are experiencing the same thing. This is not a therapeutic relationship with a counselor. It is an opportunity for children to see they are not the only ones dealing with this, it is not their fault, and to participate in exercises that educate them about how to deal with some of the emotions they are dealing with. Calm Waters, one such program in Oklahoma City, offers such a program with separate sessions available for the parents at the same time to receive information about the topic being covered in the children’s session. You can find such programs in your own area by asking school counselors, your attorney, or court staff for recommendations.

3. Talk to a children’s counselor yourself. Make an appointment to sit down with a good children’s counselor to get advice. They can educate you on norms and behaviors that may manifest themselves for children of different ages as well as make suggestions for ways to share age-appropriate information about the process. They can also make recommendations for activities and reading materials that may be helpful to your children.

4. Don’t talk negatively about the other parent. The children are dealing with enough negative changes they don’t need negative words, feelings and attitudes heaped upon them, too. If you have it in you, you might take this one step further and go out of your way to be positive about the other parent and the child’s relationship with that parent.

5. Don’t expose them to romantic relationships. No matter how long you have been separated from the other parent or how convinced you are the current flame will be your future spouse. Allow them time to process the changes going on in their own family before foisting new ‘family’ upon them. There are so many negatives that can come from such exposure – confusion, anger, blame, lack of trust, aligning themselves with the non-dating parent – that when to introduce such a person to the children may be one of the topics you want to discuss at your meeting with the children’s counselor.

Related article you might find helpful: Divorce Through a Child’s EyesChildren and Divorce: 5 Things Parents Should Never Say