Saturday, September 29, 2012

Divorce/Separation Mediation Checklist

The following issues are often discussed in a mediation involving a separation or a divorce. Please bring any relevant information with you to the mediation to help with decisions (i.e., information regarding bills, debts, value of assets, retirement plans, insurance, etc.).
Parenting Arrangements:

1. Legal Custody (who makes major decisions about the children regarding education, religion, and major healthcare issues)
2. Physical Custody (the times the children will spend with each parent)
  • Weekdays
  • Weekends
  • Childcare plans
  • Extracurricular activities
  • Holidays
  • Birthdays
  • Summers
  • Extended vacation times
  • Travel plans
  • Temporary changes to plan
3. Communication (telephone, email)
  • Between parents
  • Between parents and children
4. Spousal Support and Expenses:
  • Spousal Support: amount; method; time
  • Health insurance
  • Life insurance
  • Pension plans
  • Educational expenses
  • Housing expenses
  • Legal expenses
5. Child Support and Expenses:
  • Child support: amount; method; time
  • Health insurance
  • Medical expenses not covered by insurance
  • Childcare expenses
  • Tax deductions
  • Life insurance beneficiaries
  • School/college expenses
  • Expenses for extras: activities, birthday parties, non-essential items
6. Equitable Distribution of Property:
  • Determine value of assets and liabilities
  • House/property
  • Property expenses (mortgage, utilities, taxes)
  • Household furnishings
  • Motor vehicles (payments, insurance, expenses)
  • Savings/checking accounts
  • Investments/stocks
  • Credit card and other consumer debt
  • Personal debt
  • Insurance (cash value)
  • Tax refunds or payments due
  • Inheritance
  • Bankruptcy
  • Business
7. Other
  • Moving
  • Communication
  • Legal expenses
  • Resolving future disputes

Friday, September 28, 2012

Mediation Myths

                                      MEDIATION MYTHS-LET THE TRUTH BE KNOWN

Myth: Mediation allows one spouse to dominate another.
Fact: A good mediator pays close attention to the power balance between the spouses and uses specific techniques to address any imbalance. If one spouse persists in dominating behavior, the mediator will call a stop to the mediation rather than allowing it to continue. One caveat: Even the best mediator can be unaware of a power imbalance if it only goes on outside of the mediation sessions and the spouses don't let the mediator know about it.
Myth: Women are at a disadvantage in mediation.
Fact: Women are no more at a disadvantage in mediation than in divorce court. In fact, women can often obtain a better result in mediation than they can in court, because the mediation process allows separating spouses to negotiate an agreement that considers nonlegal factors. Also, except for court-ordered (mandatory) mediation, a woman is free to stop the mediation or refuse to sign an agreement that seems unfair to her.
Myth: Mediation is more of a hassle than hiring a lawyer to handle the divorce.
Fact: Whether divorcing spouses mediate or hire a lawyer to handle the divorce, they have to do a certain amount of gathering information and making decisions. Mediation offers a streamlined approach to the information-gathering and decision-making processes. In contrast, using the courts is cumbersome and expensive.
Myth: Mediation is for wimps.
Fact: In mediation, the spouses stand up for themselves and what they want. They don't have lawyers speaking for them and telling them what to do. As a result, people who mediate often come out of their divorce with enhanced communication skills and self-confidence, as well as agreements they can really live with.
Myth: Mediation makes the divorce take longer.
Fact: Mediation almost always takes less time than litigating a divorce. Unless the spouses have worked everything out ahead of time, hiring lawyers to handle the divorce will almost always take as long or longer than mediating, even if the lawyers are able to settle out of court.
Myth: There's no place for lawyers in mediation.
Fact: Lawyers who understand and support mediation can help mediating spouses in several ways: by informing them of their legal rights and options, by coaching them through the negotiations, by coming up with creative settlement ideas, and by preparing the necessary divorce paperwork once an agreement is signed. Most consulting lawyers charge a reasonable hourly fee and don't require a large retainer (advance deposit). A spouse pays for only as much consulting time as is needed.

Myth: All divorce lawyers understand and support mediation.
Fact: Divorce mediation is still a relatively new way of approaching divorce. Many adversarial lawyers have little or no experience with the nonadversarial approach used in mediation. Some even disapprove of mediation, arguing that divorcing spouses should not negotiate on their own but only through lawyers. These attitudes are slowly changing, as divorce lawyers become more aware of mediation and its benefits for their clients. Meanwhile, spouses wishing to mediate their divorce need to find consulting lawyers who are "mediation-friendly."
Myth: In mediation, the mediator decides what's fair.
Fact: Unlike a judge or an arbitrator, a mediator has no power to make decisions for the divorcing spouses. The mediator's job is to help the spouses negotiate an agreement that each of them considers fair enough to accept.
Myth: Mediation is always the best option for every divorcing couple.
Fact: Mediation works for most divorcing couples. As long as both spouses are able to speak up for what's important to them and can behave themselves appropriately in mediation, the process can work for them. On the other hand, mediation may not offer enough protection and structure for some couples. For example, a couple with domestic violence or substance abuse issues may need to have lawyers speak for them instead of trying to negotiate directly. In addition, some spouses may prefer to assume the risks and cost of adversarial litigation in order to make a point or assert a legal right rather than compromise in a settlement.

Thursday, September 27, 2012

Guardians Ad Litem For Children

Most family court judges do not favor having children testify in court during a child custody hearing. Custody cases are stressful and emotional matters for the parents involved, and even more so for the children. A Guardian ad Litem (GAL) is an experienced family law attorney who is appointed by the court to represent the interest of the children in a contested child custody case.

The GAL will interview the children and gather their thoughts on their relationship with the parents and the custody situation in general. In some cases, the children may express a preference to live with a particular parent that they may not otherwise disclose to the parents. The GAL will also meet with the parents and discuss custody and visitation plans, living arrangements, education issues, etc.

After investigating the case, the GAL will issue a report of their findings and recommendations to the Court. A good GAL will issue a written report that is available to the attorneys for each of the parents. This report is not binding on the court in any way, but often the judge will adopt the recommendations of the GAL.
It is important to understand the role of a GAL in your child custody case. Many parents view a GAL as an adversary. Some parents make the mistake of making disparaging comments about the other parent during a GAL interview. The GAL ‘s role is not to favor one parent or the other, but to form an opinion as to what is in the best interest of the children, their client.

You should always be respectful to the GAL and never get emotional about your relationship with your children, the other parent, or the other parent’s relationship with the children. The GAL will assume that if you are open to making unfavorable comments regarding the other parent to them, then you are likely to do so in front of your children which will hurt your case.

If you have a contested custody case, a GAL can be a major asset in your case. We will advise you on the role of a GAL and how you can better prepare yourself to get the best possible outcome in your child custody case.
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