If you are the victim of domestic violence, there is help for you.
Locally, you can contact Samaritan House at 631-0710 and the HER Shelter at 485-3384.
For other resources 24 hours per days, contact The National Domestic Violence Hotline: 1-800-799-SAFE(7233) or Safe Horizon 1-800-621-HOPE(4673).
Sunday, November 4, 2012
Monday, October 29, 2012
What To Bring To Your First Appointment
What should you bring to your first appointment to visit with a lawyer? Some of this can be sent for review in advance.
- Court Documents: If there has been a court filing, the client must bring previously filed documents. The last order entered by a court is an absolute must if the client is seeking post divorce advice. Certainly, if a client has recently been sued, the client must bring the suit and the summons served upon them and be prepared to say exactly when the papers were handed to them.
- Financial documents:
(Note: the idea is to provide a basic understanding of the finances. Detail will be developed later) - Financial statements given by either party to lenders if you have them
- basic financial statements prepared by either party
- the latest pay stub for both parties if you have them
- the latest statements for savings, stock and pension accounts if you have them (Note: the attorney will be interested in a basic idea of what was acquired during the marriage versus what was acquired before the marriage and what was received by gift during the marriage.)
- Tax returns for the last three years if you have them
- a social security earnings history if you have one
- Basic Timeline of Events: (Too much detail would not be useful in an initial appointment)
- Proof of Fault: such as telephone records, copies from Facebook, letters, recordings, pictures, cards, etc, pictures of bruises, doctor bills from abuse, etc.
- Payment: Oftentimes it is important to protect against the other party knowing about the appointment, so make arrangements to pay by a method the other spouse will not be able to detect, such as cash or cashiers check or checking account to which the other spouse does not have access.
Sunday, October 28, 2012
Cooperative Versus Collaborative Divorce
Cooperative Versus Collaborative Divorce
A recent trend in the law has been to have the parties handle their divorces through the collaborative process. In this process, the parties and the professionals (who are trained to handle cases collaboratively) sign an Agreement which provides that all discussions will be held in the open and that there will be full disclosure. If there is not a successful resolution of the issues, the parties must hire different attorneys to take the matter to court. The collaborative meetings are held with the "team members" present. The parties will each have a divorce coach who is a mental health professional. If there are children, there may be a child specialist. There also may be a financial specialist to deal with the money and property issues. While the meetings can involve a significant expense, they still resolve cases with less expense than a contested case.
In a cooperative divorce, there is no requirement that all meetings be held as a group nor is there a requirement that new counsel be obtained if an agreement is not reached. The parties may be referred out to other experts on an as needed basis. These differences keep the cost down significantlt while achieving many of the same goals of collaborative divorce.
Mary G. Commander is a trained Collaborative Divorce Practitioner and Mediator in Norfolk, VA.
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)
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
- Between parents
- Between parents and children
- Spousal Support: amount; method; time
- Health insurance
- Life insurance
- Pension plans
- Educational expenses
- Housing expenses
- Legal 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
- 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
- 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.
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.
For more information, go to my website at www.commanderlaw.com.
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.
For more information, go to my website at www.commanderlaw.com.
Thursday, August 23, 2012
Use Your Therapist In Your Divorce
http://markchinn.blogspot.com/2012/06/when-troubled-by-marriage-use-your-own.html
Wednesday, August 22, 2012
Friday, May 25, 2012
Technology Helps
1. Diary
It often is helpful to prepare a diary or narrative describing the marriage, including:
a. Each parties' monetary and non-monetary contributions,
b. Child rearing/care activities of each parent,
c. Marriage history/timeline,
d. Problems and concerns throughout the marriage
e. History of criminal, legal or medical issues during the marriage
f. Employment histories throughout the marriage.
This can be prepared in any format with which you are comfortable; however, you may wish to use Penzu (http://penzu.com). This allows you to search, sort and organize. It also is private. Just be aware that this is subject to subpoena in a court proceedings.
2. Inventory
It is important to have an inventory of your assets. Again, there is no special format required. You may wish to use iKeepm (http://iKeepm.com) or OwnDepot (http://owndepot.com). OwnDepot charges a fee for its service if you wish it to prepare an inventory for you.
3. Finances
Mint (http://mint.com, which replaced Quicken Online) allows you to enter all of your financial accounts. It helps you develop a budget and to see where your money is going.
4. Visitation
Our Family Wizard (http://ourfamilywizzard.com) is a fee based service that helps with scheduling and organization in co-parenting your children. There is even an App. for it.
It often is helpful to prepare a diary or narrative describing the marriage, including:
a. Each parties' monetary and non-monetary contributions,
b. Child rearing/care activities of each parent,
c. Marriage history/timeline,
d. Problems and concerns throughout the marriage
e. History of criminal, legal or medical issues during the marriage
f. Employment histories throughout the marriage.
This can be prepared in any format with which you are comfortable; however, you may wish to use Penzu (http://penzu.com). This allows you to search, sort and organize. It also is private. Just be aware that this is subject to subpoena in a court proceedings.
2. Inventory
It is important to have an inventory of your assets. Again, there is no special format required. You may wish to use iKeepm (http://iKeepm.com) or OwnDepot (http://owndepot.com). OwnDepot charges a fee for its service if you wish it to prepare an inventory for you.
3. Finances
Mint (http://mint.com, which replaced Quicken Online) allows you to enter all of your financial accounts. It helps you develop a budget and to see where your money is going.
4. Visitation
Our Family Wizard (http://ourfamilywizzard.com) is a fee based service that helps with scheduling and organization in co-parenting your children. There is even an App. for it.
Monday, May 21, 2012
Saturday, April 28, 2012
Friday, March 23, 2012
Top Ten Ways To Save Money in Your Divorce
Top Ten Ways To Save Money in Your Divorce
Top Ten Tips
Here's the inside scoop on how to save on legal fees in a divorce.
By Linda C. Senn
Top Ten Tips
Here's the inside scoop on how to save on legal fees in a divorce.
By Linda C. Senn
When it
becomes clear that your marriage is over, and no amount of pretense or
counseling can fix what is broken, you'll need to line up an attorney to
represent you in the divorce process. At this extremely vulnerable
time, you'll be placing your life and your future in your attorney's
hands, and you'll add one more worry to your ample list of stresses --
the high cost of divorce!
Attorneys
usually charge an hourly rate calculated in 15-minute increments -- even
if the service takes only a minute or two of his time. That "quick
little call" you make to your lawyer could cost you from $50 up. If you
succumb to the temptation to call every day, your monthly charge just
for phone calls can run well over $1,000. If the process drags on for a
year, you'll pay $12,000 and up just for those brief daily calls!
Here are ten
simple steps for saving big bucks over the course of separation and
divorce; some of the tips are general and can be applied to other legal
situations as well.
-
Saving money on legal fees starts before you have your first attorney interview. Round up all the personal referrals you can from friends, family, colleagues, and neighbors who were happy with their own divorce lawyers. Ask if the client's calls were returned in a timely manner, or if sustained nagging was required to get a call-back. The bill should run far less for a focused, efficient attorney than it would for a disorganized one. Did that attorney stall or delay the process? Did she favor lengthy debates between opposing attorneys? Was her billing accurate, detailed, and free from "fluff?" These factors can have a major effect on the final cost.
-
During your initial telephone interview with the attorney, ask what he charges and how it's calculated. Is it a flat hourly fee charged in 15-minute increments, or is it figured by some other method? Ask if he requires an initial retainer, and if so, how much for your situation. Complex divorces often call for a more substantial amount. Tell him that you want to keep the costs to a reasonable minimum and ask if he'll help you to do so.
-
Don't discuss the weather, the baseball playoffs, or your mother's petunias: chit chat is expensive. Even though she's holding your future in her hands, and there's a natural inclination to talk to your attorney as a friend, socializing can become expensive. Allow a brief time to reconnect either in person or over the phone, then get on with business. By the same token, if you have a gabby attorney, learn how to gently but firmly bring her back to the business at hand.
-
Although you may find a genuinely sympathetic attorney, don't use him as a counselor. Go to a licensed therapist. An experienced mental health professional will be more effective, will cost less per hour, and will help you deal with the emotional peaks and pits that continually throw you off balance. In addition to that, you'll have developed a relationship with a therapist who can guide you through the rocky recovery period after the divorce is granted.
-
Don't ask for special paperwork. Whenever possible, run your own copies, take notes when you talk to your attorney on the phone (so you don't have to call him later to double-check on the conversation), and look up any phone numbers and addresses he may need in working up your case.
-
Don't complain about your soon-to-be-ex unless it directly applies to the current procedure. This is so very tempting during divorce (and subsequent custody and/or maintenance hearings)! You feel compelled to point out how moronic and venal your soon-to-be-ex is, and by implication, how much better a human being you are. Resist the urge. It's both pointless and expensive.
-
If you invite your attorney to lunch (or vice-versa), find out first if it will be "on the clock." There may be times when a luncheon meeting is most convenient for both of you -- just be sure you know the ground rules going in. If you'll be discussing business, have a pen and paper with you so the lunchtime information doesn't disappear with the last cup of coffee. Be especially vigilant about idle chatter if you're paying attorney's fees for the privilege.
-
Ask for specific ways you can save on lawyer hours, such as doing your own research, filling out forms, or mailing notices. You just might be able to shave a few hundred dollars off the final tab by doing some of the routine clerical work yourself. In a long, drawn-out divorce, ask the lawyer periodically if there are any other aspects you can take care of yourself to save money.
-
Consider hiring a skilled mediator to help you and your spouse arrive at mutually agreeable solutions to your financial and custody disagreements. Mediators are specifically trained to help you resolve your problems together, and the cost will probably be less that you'd pay for the opposing attorneys to argue with each other. (You'll still need to retain your own lawyer to check any agreement before you sign it, however.) Mediators also allow you to employ cooperation and compromise in arriving at a settlement agreement, which leaves far less emotional scarring than the adversarial attorney-to-attorney method.
-
Do your own Discovery. Discovery is basically pretrial disclosure of pertinent facts and documents, including financial figures, by one or both parties in a divorce or other legal process. It can involve a fair amount of sleuthing time, so you'll be money ahead if you ferret out the hard-to-find information (like hidden assets), rather than relying on your attorney to do it all.
One last word
about maintaining control of your legal expenses: request itemized
monthly bills from your attorney. Knowing just how your legal dollars
are being spent can be the most effective aid in helping you keep them
to a reasonable minimum!
Linda C. Senn is author of Your Pocket Divorce Guide and co-author with Mary Stuart, M.A. of The Divorce Recovery Journal.
Thursday, March 22, 2012
Saturday, March 17, 2012
New Streamlined Procedure For Uncontested Divorces
In most localities in Hampton Roads, there is a requirement that one of the parties in a divorce and the corroborating witness personally appear before the court to testify in order for a Final Decree of Divorce to be entered. Governor McDonnell just signed a bill which would permit uncontested divorces to be granted upon affidavits, with no personal appearance required. This procedure will save thousands of hours of wasted court time for the parties and the judges.
The new statutory procedure statewide will be:
However, a party may proceed to take evidence in support of a divorce by deposition or affidavit without leave of court only in support of a divorce on the grounds set forth in subdivision A (9) of § 20-91, where (i) the parties have resolved all issues by a written settlement agreement, (ii) there are no issues other than the grounds of the divorce itself to be adjudicated, or (iii) the adverse party has been personally served with the complaint and has failed to file a responsive pleading or to make an appearance as required by law.
B. The affidavit of a party submitted as evidence shall be based on the personal knowledge of the affiant, contain only facts that would be admissible in court, give factual support to the allegations in the complaint or counterclaim, and establish that the affiant is competent to testify to the contents of the affidavit. The affidavit shall:
1. Affirm the allegations in the complaint or counterclaim, including that the parties are over the age of 18 and not suffering from any condition that renders either party legally incompetent;
2. Affirm that neither party is incarcerated;
3. Verify the military status of the opposing party and advise whether the opposing party has filed an answer or a waiver of his rights under the federal Servicemembers Civil Relief Act (50 U.S.C. App § 501 et seq.);
4. Affirm that at least one party to the suit is, and has been for a period in excess of six months, a bona fide resident and domiciliary of the Commonwealth;
5. Affirm that the parties have lived separate and apart, continuously, without interruption and without cohabitation, and with the intent to remain separate and apart permanently, for the statutory period required by subdivision A (9) of § 20-91;
6. Affirm the affiant's desire to be awarded a divorce pursuant to subdivision A (9) of § 20-91;
7. State whether there were children born or adopted of the marriage and affirm that the wife is not known to be pregnant from the marriage; and
8. Be accompanied by the affidavit of a corroborating witness, which shall:
a. Verify that the affiant is over the age of 18 and not suffering from any condition that renders him legally incompetent;
b. Verify that neither party is incarcerated;
c. Verify the allegations in the complaint or counterclaim;
d. Verify that at least one of the parties to the suit is, and has been for a period in excess of six months, a bona fide resident and domiciliary of the Commonwealth;
e. Verify whether there were children born or adopted of the marriage and verify that the wife is not known to be pregnant from the marriage; and
f. Verify the affiant's personal knowledge that the parties have not cohabitated since the date of separation alleged in the complaint or counterclaim, and that it has been the moving party's intention since that date to remain separate and apart permanently.
The new statutory procedure statewide will be:
However, a party may proceed to take evidence in support of a divorce by deposition or affidavit without leave of court only in support of a divorce on the grounds set forth in subdivision A (9) of § 20-91, where (i) the parties have resolved all issues by a written settlement agreement, (ii) there are no issues other than the grounds of the divorce itself to be adjudicated, or (iii) the adverse party has been personally served with the complaint and has failed to file a responsive pleading or to make an appearance as required by law.
B. The affidavit of a party submitted as evidence shall be based on the personal knowledge of the affiant, contain only facts that would be admissible in court, give factual support to the allegations in the complaint or counterclaim, and establish that the affiant is competent to testify to the contents of the affidavit. The affidavit shall:
1. Affirm the allegations in the complaint or counterclaim, including that the parties are over the age of 18 and not suffering from any condition that renders either party legally incompetent;
2. Affirm that neither party is incarcerated;
3. Verify the military status of the opposing party and advise whether the opposing party has filed an answer or a waiver of his rights under the federal Servicemembers Civil Relief Act (50 U.S.C. App § 501 et seq.);
4. Affirm that at least one party to the suit is, and has been for a period in excess of six months, a bona fide resident and domiciliary of the Commonwealth;
5. Affirm that the parties have lived separate and apart, continuously, without interruption and without cohabitation, and with the intent to remain separate and apart permanently, for the statutory period required by subdivision A (9) of § 20-91;
6. Affirm the affiant's desire to be awarded a divorce pursuant to subdivision A (9) of § 20-91;
7. State whether there were children born or adopted of the marriage and affirm that the wife is not known to be pregnant from the marriage; and
8. Be accompanied by the affidavit of a corroborating witness, which shall:
a. Verify that the affiant is over the age of 18 and not suffering from any condition that renders him legally incompetent;
b. Verify that neither party is incarcerated;
c. Verify the allegations in the complaint or counterclaim;
d. Verify that at least one of the parties to the suit is, and has been for a period in excess of six months, a bona fide resident and domiciliary of the Commonwealth;
e. Verify whether there were children born or adopted of the marriage and verify that the wife is not known to be pregnant from the marriage; and
f. Verify the affiant's personal knowledge that the parties have not cohabitated since the date of separation alleged in the complaint or counterclaim, and that it has been the moving party's intention since that date to remain separate and apart permanently.
Thursday, March 15, 2012
Court "Appearance"
"Appearance is everything."
There is a great deal of truth to that statement, especially when it comes to going to court. The judge who is hearing your case will not know you and in all likelihood, has never seen you before. He will make decisions and judgments about you based on a very short period of contact. Because of this, your overall demeanor and appearance can have a great impact.
This may require that you "act" like you are calm and collected when in fact, you are a nervous wreck. This also may require you to ignore taunts from the other party or their counsel and to refuse to fall into the trap of getting angry or aggressive in response. Don't argue with the attorney, the court or anyone else. And only speak when it is your turn! Blurting out reactions or comments just makes the judge mad. Expect to hear things you disagreed with and that you will be able to dispute when you testify.
You should be respectful and courteous to everyone, even your own lawyer-but most especially to the judge. There should be no arguments in the courtroom hallways. Word of this often gets back to the judge.
You also should appear to be, and actually be, prepared for court. Bring ALL of your information to court with you. You may not need it, but if you do, it is there. Keep your papers neatly organized. I give clients a folder to use, but you may need more storage space. Be certain that your lawyer has all of the information in advance.
You also need to plan to arrive at court EARLY just to make sure that you are not late and so that you can discuss last minute details with your lawyer. Tell your witnesses to do the same.
Do not bring "dates" to court, especially in family law matters. If you need moral support, bring a relative or friend.
Most local courts will not permit you to bring cellphones in. To be on the safe side, leave it in the car, and tell your witnesses to do the same.
Dress in an appropriate manner. Never wear shorts or t-shirts. Avoid jeans. Dress conservatively. Many judges are old men. They do not appreciate trendy styles. Avoid glitzy jewelry. Men should wear dress shirts and dress pants, if possible. No cleavage or extra short skirts for women.
You need to be clean, shaved and well-groomed. No extra cologne or other distractions (for example, if the nose ring can come out, take it out). If you need a haircut, get one before court.
Do not bring children to court unless they are under subpoena and are required to be there. Find a babysitter. Judges hate babies in court.
Even if you look like you are a winner and deserving of confidence, you are not guaranteed to win, but you will not lose because of factors that are completely within your control!
Tuesday, March 13, 2012
Divorce Mediation Checklist
The following issues are often discussed in a mediation involving
separation or divorce. Please bring any relevant information with you
to the mediation to help with making an informed decision (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)
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
- Between parents
- Between parents and children
- Spousal Support: amount; method; time
- Health insurance
- Life insurance
- Pension plans
- Educational expenses
- Housing expenses
- Legal expenses
- Child support: amount; method; time (Virginia Child Support Guidelines)
- Health insurance
- Medical expenses not covered by insurance
- Childcare expenses
- Tax deductions
- Life insurance beneficiaries
- School/college expenses
- Expenses for extras: activities, birthday parties, lessons, non-essential items
- 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
- Bankruptcy
- Business
- Moving
- Communication
- Legal expenses
- Resolving future disputes
Saturday, February 18, 2012
Mark Chinn's Family Law Blog: WHAT ARE CUSTODY RIGHTS BEFORE THERE'S AN ORDER?
Mark Chinn's Family Law Blog: WHAT ARE CUSTODY RIGHTS BEFORE THERE'S AN ORDER?: Before a court has entered some form of order, each parent has equal rights to custody. Unfortunately, if parents choose to, they can play a...
Thursday, February 16, 2012
What Makes A Good Divorce Client?
What Makes A Good Divorce Client?
Divorce is one of the most traumatic events that anyone can go through in his or her lifetime. Not only is it frightening, but it's difficult, to say the least -- even under the best of circumstances. Attorneys and clients usually have a love/hate relationship during a divorce.
Typically clients will need an attorney at the beginning of the case, but by the end of the divorce in many circumstances, the client's attitude -- sometimes justifiably -- is that the attorney didn't do enough for them -- "I'm not happy with your services, and for these reasons, I don't want to pay your bill."
Think of this scenario. A person going through a divorce is in a no win situation. First of all, you don't see your children all the time, even under the best of circumstances, where custodial arrangements range from one parent having primary physical custody and the other parent having very limited time to a 50/50 arrangement. So no matter how you look at it, you will spend less time with your children. Second, one party is paying child support, the other party is receiving child support, and when you split up and set up two separate households, too often there is not enough money to go around. Third, in many cases there is spousal support, which again cuts the marital pie. Fourth, there are the issues of property -- it is divided. You now have half of what you had, you often have more debts, and -- to say the least -- it is too frequently a lose/lose situation. Attorneys end up helping people divide debts, as they have fewer assets, smaller retirement accounts, and houses that are under water.
Finally, to add insult to injury, you have to pay your attorney. So from this attorney's perspective, what makes a good client?
1. Try to be organized. When you are meeting with your attorney, write down your questions in advance. Try to have an agenda, and make sure that your attorney answers your questions.
2. Do not call or e-mail continually because this is how your case will start spinning out of control from a cost standpoint. Most attorneys charge by the hour, and we are not only charging for phone calls, but also for e-mails, because e-mail has now become the preferred method of communication. I find that I have almost no snail-mail in my cases, and everything is done electronically. Save up your questions. If you are going to communicate by e-mail or phone, have several questions at once, rather than doing one now, one later, and having a bombardment of e-mails back and forth on a daily basis, which happens too frequently in cases that are spinning out of control.
3. Remember that an attorney is here to assist you and help you through the legal system. Do not be afraid to feel lost and bewildered, but make sure that you and your attorney are communicating. A good client will ask questions, but not too many.
4. Have reasonable expectations. Be realistic. A good attorney will help you stay reality oriented. Listen to your attorney. Listen to legal advice. Remember that you are trying to resolve issues, not have a war.
5. Try to be reasonable. Don't ask for something that you are not going get. Bear in mind that in negotiations, you should always ask for more than you expect to receive, but don't be off the wall. Have realistic expectations regarding custody and parenting time. Try to be realistic about child support and spousal support. Try to be realistic about property division.
6. Too many clients want the house no matter what. Yes, there is often an emotional attachment, but in many cases, especially if the economics make no sense, it is better to not keep the house. Sometimes it is better to sell it; sometimes it's better for the spouse who has a greater income to keep it. These are all things to consider.
7. Have a game plan and an agenda, but be prepared to be flexible. Remember that life happens, and if things didn't go wrong in your life, you wouldn't be getting a divorce in the first place.
8. Work with a therapist. This is important, because often there are anger issues or feelings of loss, or resentment. Your attorney is not your therapist.
9. Try to have your attorney explain the legal system to you so you know what to expect.
10. It is important to assist your attorney as far as providing documents and information, because the more helpful you can be, the more cost effective your attorney can be, and the lower your attorney fees will be.
11. Don't hesitate to discuss fees, to ask about how much the representation will cost, and do not hesitate to request a monthly billing statement so you know exactly what is going on with regard to billings in your case.
12. Last, but not least, remember that divorce is a process, a transition, albeit a painful one, but it is a step that you will get through. I often tell my clients to think of a 100-yard dash. That is not a divorce. A divorce is more like a marathon, and if you start understanding that, you will get through it. You will also be a better client, and you will understand that there is light at the end of the tunnel.
What are your thoughts? Please share them with us.
By: HENRY S. GORNBEIN
Family Law Attorney & Legal Correspondent
DivorceSourceRadio
40900 Woodward Avenue, Ste. 111
Bloomfield Hills, MI 48304-5116
248/594-3444; Fax 248/594-3222
DivorceSourceRadio.com
hgornbein@familylawofmichigan.com
henry@divorceonline.com
Follow Henry Gornbein on Twitter: www.twitter.com/.
Sunday, February 12, 2012
What is mediation, and who can it help?
My husband and I are going through a divorce. A friend suggested we go to mediation? What is it exactly? How does it work?
Mediation is a way to resolve conflict where people who disagree meet with an impartial third party to help them create a mutually acceptable agreement.
Mediation is:
Confidential — You won’t be reading about the results of your agreement in the paper.
Voluntary — You can leave at any time for any reason or no reason at all. Even if mediation is court ordered, if you make a good faith effort to come to agreement, you will fulfill that obligation.
Neutral — A mediator’s job is to create a safe and productive environment, not to decide who is right or wrong.
You have control over the outcome — You do not have to agree to anything that isn’t right for you.
There are two types of mediation practiced in the Helena area, evaluative and facilitative.
An evaluative mediator focuses on the legal rights of the parties and helps them reach agreement according to the legal definition of fairness. The mediator is likely to evaluate how a judge might rule. The meetings are most often held in separate rooms, with the mediator shuttling back and forth. Because of the legal knowledge required to evaluate a case and lawyers’ tradition of meeting separately, most evaluative mediators are attorneys.
A facilitative mediator uncovers the needs behind a stated position and helps the parties find a solution that meets those needs. He or she will help the parties communicate clearly, keep everyone focused, respectful and moving towards a resolution. A facilitative mediator does not make recommendations, offer advice or analyze the parties’ chances in court. Facilitative mediators most often meet with everyone in the same room, with an occasional private meeting with each side. They come from all backgrounds, including the legal profession.
Even if your mediator is an attorney, he or she won’t be offering legal advice, so both styles of mediation encourage the parties to have an attorney review any agreement before signing.
It is important to consider which style of mediation best fits your situation:
• Do you want a process that also works on improving communication in a continuing relationship? Is a “just-the-facts” negotiation style more to your liking?
• Do you want your legal position evaluated by your mediator in the mediation or later by your attorney?
• Do you prefer to meet around the same table or in separate rooms?
• Do you want more or less direction from your mediator?
Who should not mediate?
Because mediation depends on the honest disclosure of financial assets, if there is a concern that someone might be hiding money or property, that issue should be taken to court.
Traditionally mediation has not been used in cases of domestic violence, and attorneys say that Montana law allows domestic violence survivors to opt out of even court-ordered mediation. Some survivors want to have more of a say in the outcome of their divorce. If this is your situation, and you want to mediate, it is important that your mediator understands the dynamics of domestic violence and designs the session to be emotionally and physically safe. Some survivors can comfortably advocate for themselves in the same room. Others need to meet separately, arrive at different times, be behind a locked door or mediate by phone.
You don’t have to go it alone. If it is acceptable to all parties, you may bring in a friend, family member or an attorney to help you negotiate, be an advocate or to help think of new ideas.
Whatever your preferences, there is a mediator who suits your needs and will help you reach an agreement that works for you, taking less time and costing less than a court battle.
Visit our mediation website: www.mediate-at-candc.com
Monday, January 30, 2012
Points awarded
Other ways to earn
My husband cheated on me can I get alimony? He only works part time.
His lover called me and left a massage on my phone about them.
Spousal support in Virginia is not a punishment for wrongdoing by a spouse , so his adultery alone would not justify a support award. Instead, spousal support is based primarily on one party's need and the pther party's ability to pay.
Spousal support can be awarded in the Juvenile and Domestic Relations District. This court uses a statutory formula for calculating support. The statute provides:
A. There shall be a presumption in any judicial proceeding for pendente lite spousal support and maintenance under this title that the amount of the award that would result from the application of the formula set forth in this section is the correct amount of spousal support to be awarded. The court may deviate from the presumptive amount as provided in subsection D.
B. If the court is determining both an award of pendente lite spousal support and maintenance and an award of child support, the court shall first make a determination of the amount of the award of pendente lite spousal support, if any, owed by one party to the other under this section.
C. If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 28% of the payor spouse's monthly gross income and 58% of the payee spouse's monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the difference between 30% of the payor spouse's monthly gross income and 50% of the payee spouse's monthly gross income. For the purposes of this section, monthly gross income shall have the same meaning as it does in section Sec. 20-108.2, as amended.
D. The court may deviate from the presumptive amount for good cause shown, including any relevant evidence relating to the parties' current financial circumstances that indicates the presumptive amount is inappropriate. (Va. Code Section 16.1-278.17)
Spousal support also can be awarded in the Circuit Court as a part of a divorce case. While there is no formula for support, there are statutory factors which the court is to consider. The statute provides:
E. The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of Sec. 20-91 or Sec. 20-95. In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:
1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and any special circumstances of the family;
5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under Sec. 20-107.3;
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential.
12. Other relevant factors, including the tax consequences to either party.
Virginia Code Section 20-107.1
Spousal support can be awarded in the Juvenile and Domestic Relations District. This court uses a statutory formula for calculating support. The statute provides:
A. There shall be a presumption in any judicial proceeding for pendente lite spousal support and maintenance under this title that the amount of the award that would result from the application of the formula set forth in this section is the correct amount of spousal support to be awarded. The court may deviate from the presumptive amount as provided in subsection D.
B. If the court is determining both an award of pendente lite spousal support and maintenance and an award of child support, the court shall first make a determination of the amount of the award of pendente lite spousal support, if any, owed by one party to the other under this section.
C. If the parties have minor children in common, the presumptive amount of an award of pendente lite spousal support and maintenance shall be the difference between 28% of the payor spouse's monthly gross income and 58% of the payee spouse's monthly gross income. If the parties have no minor children in common, the presumptive amount of the award shall be the difference between 30% of the payor spouse's monthly gross income and 50% of the payee spouse's monthly gross income. For the purposes of this section, monthly gross income shall have the same meaning as it does in section Sec. 20-108.2, as amended.
D. The court may deviate from the presumptive amount for good cause shown, including any relevant evidence relating to the parties' current financial circumstances that indicates the presumptive amount is inappropriate. (Va. Code Section 16.1-278.17)
Spousal support also can be awarded in the Circuit Court as a part of a divorce case. While there is no formula for support, there are statutory factors which the court is to consider. The statute provides:
E. The court, in determining whether to award support and maintenance for a spouse, shall consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce under the provisions of subdivision (3) or (6) of Sec. 20-91 or Sec. 20-95. In determining the nature, amount and duration of an award pursuant to this section, the court shall consider the following:
1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
2. The standard of living established during the marriage;
3. The duration of the marriage;
4. The age and physical and mental condition of the parties and any special circumstances of the family;
5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;
6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
7. The property interests of the parties, both real and personal, tangible and intangible;
8. The provisions made with regard to the marital property under Sec. 20-107.3;
9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential.
12. Other relevant factors, including the tax consequences to either party.
Virginia Code Section 20-107.1
This response does not create an attorney-client relationship and is intended for general information purposes only.
Friday, January 27, 2012
Criminal Background Check For Foster and Adoptive Parents
Criminal Background Checks for Prospective Foster and Adoptive Parents
Citation: Virginia Code § 63.2-1721
Foster parents and any adults residing in the home shall undergo background checks prior to approval. Background checks require:
- A criminal history record check
- A search of the central registry for any founded complaint of child abuse and neglect
Conviction of a ''barrier crime'' shall disqualify an applicant. ''Barrier crime'' includes:
- Murder or manslaughter
- Malicious wounding
- Abduction for immoral purposes
- Assaults and bodily wounding
- Robbery, burglary, or carjacking
- Threats of death or bodily injury
- Felony stalking
- Sexual assault
- Arson
- Drive-by shooting
- Use of a machine gun or sawed-off shotgun in a crime of violence
- Pandering, crimes against nature involving children, incest, or taking indecent liberties with children
- Abuse and neglect of children or failure to secure medical attention for an injured child
- Child pornography
- Abuse and neglect of incapacitated adults
- Delivery of drugs to prisoners
- Any felony violation relating to possession or distribution of drugs
A foster home also may be disqualified for:
- A conviction of any other felony not listed above unless 5 years have elapsed since conviction
- A founded complaint of child abuse or neglect
A child-placing agency may approve as a foster parent an applicant who has been:
- Convicted of not more than one misdemeanor not involving abuse, neglect, or moral turpitude of a minor, provided 10 years have elapsed following the conviction
- Convicted of statutory burglary for breaking and entering a dwelling, home, or other structure with intent to commit larceny, who has had his or her civil rights restored by the Governor, provided 25 years have elapsed
- Convicted of felony possession of drugs who has had his or her civil rights restored by the Governor, provided 10 years have elapsed
Guardians Ad Litem For Children
In child custody and visitation cases, it is the practice of most judges to appoint a Guardian Ad Litem (GAL). This person represents the interests of the child(ren). He or she will investigate the facts and will make a report back to the court. The report often will contain a recommendation as to the resolution of the case. The court also can refer the case to CASA (Court Appointed Special Advocates) who will do their own investigation and report.
The quality of the service provided by GALs varies widely. There are statutory requirements relating to their qualifications and duties.
Qualifications/Training
Citation: Virginia Code §§ 16.1-266.1; 9.1-153
The Judicial Council of Virginia, in conjunction with the Virginia State Bar and the Virginia Bar Association, shall adopt standards for attorneys appointed as GALs. The standards shall, as far as practicable, take into consideration the following criteria:
The quality of the service provided by GALs varies widely. There are statutory requirements relating to their qualifications and duties.
Qualifications/Training
Citation: Virginia Code §§ 16.1-266.1; 9.1-153
The Judicial Council of Virginia, in conjunction with the Virginia State Bar and the Virginia Bar Association, shall adopt standards for attorneys appointed as GALs. The standards shall, as far as practicable, take into consideration the following criteria:
- License or permission to practice law in Virginia
- Current training in the roles, responsibilities, and duties of GAL representation
- Familiarity with the court system and general background in juvenile law
- Demonstrated proficiency in this area of the law
The Judicial Council shall maintain a list of attorneys who are qualified to serve as GALs based upon the standards and shall make the names available to the courts. If no attorney who is on the list is reasonably available, a judge in his or her discretion, may appoint any discreet and competent attorney who is admitted to practice law in Virginia.
The Department of Criminal Justice Services shall adopt regulations governing the qualifications of advocates who shall be deemed to be criminal justice employees. An advocate must be at least age 21, and the program director shall obtain a copy of the advocate's criminal history record and information from the central registry on child abuse and neglect to certify that no records are maintained on him or her.
An advocate shall have no associations that create a conflict of interest or the appearance of such a conflict with his or her duties as an advocate. No advocate shall be assigned to a case of a child whose family has a professional or personal relationship with the advocate.
No applicant shall be assigned as an advocate until successful completion of a program of training required by regulations. The department shall set standards for both basic and ongoing training.
Specific Duties
Citation: Virginia Code § 9.1-153; Va. Sup. Ct. Rule 8:6
The advocate's duties shall include:
- Investigating the case to which he or she is assigned to provide independent factual information to the court
- Submitting to the court a written report of his or her investigation in compliance with the provisions of § 16.1-274
- Upon request of the court, making recommendations as to the child's welfare
- Monitoring the case to ensure compliance with the court's orders
- Assisting any appointed GAL to represent the child in providing effective representation of the child's needs and best interests
- Reporting a suspected abused or neglected child pursuant to § 63.2-1509
The advocate is not a party to the case to which he or she is assigned and shall not call witnesses or examine witnesses. The advocate shall not, with respect to the case to which he or she is assigned, provide legal counsel or advice to any person, appear as counsel in court or in proceedings that are part of the judicial process, or engage in the unauthorized practice of law. The advocate may testify if called as a witness.
The GAL shall vigorously represent the child fully protecting the child's interest and welfare. The GAL shall advise the court of the wishes of the child in any case where the wishes of the child conflict with the opinion of the GAL as to what is in the child's interest and welfare.Domestic Assault
was arrested for hitting my boyfriend
I came home to a drunk (should have known) then I decide to leave he starts cussing me and calling my daughters very nasty names in my face I hit him. I sit to get my phone he was on top of me trying to take it. He destroyed my things and I called the police. I got arrested and have never been in trouble before. I ended up with a contusion (not sure of the spelling) and very sore. I did have this noted by the doctor that night. What happens in most cases like this?
My rule is that you should never invite the law into your home (with very few exceptions). It is far from uncommon for the one who calls the Police or Social Services to end up with the punishment.
From the facts that you provided, it appears that you both are guilty of assault. Since you were the initial aggressor, you were arrested. You can file a cross warrant against him for the assault. Go and see the Magistrate about this. In most cases like this, the charges will be dismissed if neither party has a record. The final decision, however, is up to the judge.
From the facts that you provided, it appears that you both are guilty of assault. Since you were the initial aggressor, you were arrested. You can file a cross warrant against him for the assault. Go and see the Magistrate about this. In most cases like this, the charges will be dismissed if neither party has a record. The final decision, however, is up to the judge.
This response does not create an attorney-client relationship and is intended for general information purposes only.
Tuesday, January 24, 2012
What You Don't Know About Divorce Mediation
What Most People Don't Know About Divorce Mediation
Divorce mediation is not all that the public seems to think it is. This post aims to clear up some of the common misunderstandings associated with it.
Divorce mediation is for reasonable people who cannot resolve their differences by themselves.
As divorce lawyers, we regularly receive phone calls from prospective clients who explain that they and their soon-to-be exes are seeking a divorce, and that they have already reached a settlement on their own. They go on to tell us that they want to use mediation to conclude their case.
We tell them they do not need a mediator. Instead, they should be looking for a lawyer to shepherd their settlement through the legal system. Their situation does not belong in mediation because mediation helps people resolve disputes; and these callers do not have a dispute, they have a resolution of their dispute. They already have the best that mediation could ever give them. If their wish is to save time and money, their best bet is to take their settlement straight to court for a judge's approval.
Divorce mediation is an out-of-court dispute-resolution tool that helps people settle their differences sensibly and with the legal system having only minimal involvement.
It provides a structured process that minimizes the defensiveness and friction that are normally present during spousal settlement conversations. It does this by creating a non-confrontational atmosphere that encourages the spouses to put their best foot forward when they are presenting their thoughts and concerns to one another.
Mediation employs the use of a neutral and impartial third party -- a mediator -- to help the disputants reach a peaceful compromise that they can both find acceptable.
Mediators are not referees, judges, or arbitrators and they cannot make decisions regarding who is going to win or lose. Their only job is to guide the parties during their negotiations, just as air traffic controllers guide air traffic.
We must be at our very best if we hope to persuade our partner to agree to an out of court settlement that he or she is typically inclined to resist. Accomplishing this is often difficult because divorce tends to put us at our worst. This is where the mediator comes in. He or she directs the interaction and dialogue away from potential negotiation hazards and makes it possible for us to be at our best.
We have all heard of friends, family, or coworkers who have gone through divorce mediation with great success. As mediators ourselves, we certainly attest to mediating many successful divorce resolutions. However, we have our reservations about the effectiveness of mediation during the early stages of divorce.
For mediation to be successful, both disputants must be reasonable people who are motivated to negotiate a final settlement. However, this is not what usually happens during the early stages of divorce.
In the initial phase of most marital break ups, emotions often hinder the participants' ability to be reasonable. In addition, it is also very common for only one partner to be ready to divorce.
He or she wishes to begin settlement negotiations, and the other party wishes to work on saving the marriage. This difference in motivation tends to stymie the chances of mediation's success. It is extremely difficult to negotiate a price with someone who is dead set against buying the item at any cost.
The mediation clients with whom we have had successful results during the initial stages of divorce are the exceptions to the general rule. These are the extremely reasonable people with workable factual situations who are highly motivated to reach a cooperative divorce. Our role as mediator usually involves only minimal guidance to assure the couple that their settlement proposals cover all the bases and do not omit any items of importance.
Many people see mediation as an end-all, attorney-free process. However, in most instances, those with a mediated settlement still have to hire at least one attorney to process the divorce through the legal system. In addition, mediators are trained to recommend to both parties that they consult with their own attorneys before formalizing any agreement reached in mediation.
Divorce mediation is not for every couple, and it is not for every situation. However, it has no down-side and can help people save time, energy, and expense, not to mention wear and tear on the family unit.
J. Richard Kulerski and Kari L. Cornelison are partners in the Chicago area, Oak Brook, IL divorce law firm of Kulerski & Cornelison. You may find them at www.civilizeddivorce.com and at their firm's blog dupagedivorcelawyerblog.com.
Richard is the author of The Secret to a Friendly Divorce: Your Personal Guide to a Cooperative, Out-of-Court Settlement.
Follow J. Richard Kulerski and Kari L. Cornelison on Twitter: www.twitter.com/Chicago_Divorce
Follow J. Richard Kulerski on Twitter: www.twitter.com/Chicago_Divorce
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