WHAT IS FAMILY LAW MEDIATION?

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What is divorce mediation?

Family Law mediation is one of the more common methods of negotiating to settlement the legal issues that arise in a divorce. It is not going into court and litigating each issue tooth and nail. In divorce mediation matters, you and your soon-to-be-ex-spouse may hire a specialist in family law as mediator, someone who will meet with you in an effort to resolve your differences and come to a negotiated agreement. The family law specialist acts as mediator and facilitator who will help you and your spouse resolve your issues in a fair and equitable manner.

Mediation of a divorce is an important option both parties should consider as it saves costs and stress for both parties. Mediation is designed to help both parties and has a long list of benefits for families. The benefits include, but are not limited to:

• Mediation usually costs much less than litigation which may require a series of court hearings.
• With your direct participation, mediation should result in a comprehensive settlement of all the issues in your matter.
• Mediation is confidential, meaning there is no public record of declarations or financial information.
• A lawyer of your choice can still give you legal advice during your mediation.
• Your spouse and you are in control of the entire process of mediation.
• The mediation process allows time for you to improve communication with your spouse.
• Mediation will help minimize the emotional damage children may experience during their parents’ divorce.
• Maybe most importantly, mediation allows you to negotiate the terms of your agreement based on your own ideas as to what is fair in your situation and what is best for your family as a whole as opposed to having a solution imposed upon you by a family law judge that is based upon impersonal legal principles.

Mediation is not for all divorcing couples. Matters where there is a history of domestic violence or an imbalance of power between the parties may not be right for mediation. But if your spouse and you are willing to communicate and compromise with each other in a rational manner with open minds you could mediate.

Your Divorce Mediator should be a specialist in family law who will help the two of you stay on track with the issues and in tune to one another, to listen to each other, to respect and understand each other’s opinions. It is important to listen to your spouse’s perspective and to be willing to compromise. Compromise is key to reaching a fair and mutually beneficial settlement in the mediation process.

Being able to empathize with your spouse’s position is important. Hopefully your spouse will do the same. They will feel what it’s like to be you. The idea is that you reach an agreement based on trust and understanding where both of your best interests, and those of the children if there are any, are taken into account and addressed.

This mutual understanding will be drafted by the mediator into a settlement agreement. If children are involved, a parenting schedule or a parenting plan will be needed. Other legal documents will be drafted such as a Petition for Dissolution or Legal Separation, and Financial Disclosure documents. The mediation process allows you and your spouse to decide the terms to live by in a divorce, terms that you agree to live by, without your family having to suffer through the negative emotions and financial costs of a courtroom trial.

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THE COST OF MEDIATING VERSUS LITIGATING

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Mediation is on the rise in resolving family law related and divorce issues simply because most people can no longer afford the good fight in family law court. The economy is spiraling downward and the United States dollar is losing its purchasing power at about ten percent per annum. Divorces can be expensive when two parties refuse to communicate in a rational and civil manner and they want to let their lawyers do their talking for them.

When you decide to hire a lawyer to litigate your family law case, Discovery will be conducted by your two attorneys. Subpoenas will be issued and hearings will be scheduled. In the end, attorneys’ fees will multiply. The litigation process can easily run into the tens of thousands of dollars and if two parties have enough to fight for, then six figures in attorneys fees is not unheard of.

The difference in the costs associated with mediating a family law settlement yourself through mediation versus litigating family law matters with hired professionals can be dramatic. Of course the complexities of each particular family law matter will dictate much toward the legal work that needs to be performed, but mediating a family law matter, or most legal matters for that matter, could be resolved for less than half the cost of a litigated case.

The costs generally associated with mediation include, but are not limited to, both parties meeting together, not individually, for consultation with a mediating attorney, and then the follow up meetings with that attorney in an effort to resolve the issues in dispute. When a settlement is reached the mediating attorney will prepare a settlement agreement negotiated by you. The preparation of additional associated documents will be required, such as a Petition for Dissolution of Marriage or Legal Separation, Disclosure Documents, and specific Waivers.

The cost of litigating your family law matter would certainly be much more time, emotion, and cost consuming. In the litigation model, the preparation of financial documents and mandatory disclosure compliance can run several thousand dollars. Your attorney will need to draft motions and sometimes fight to get the other side to pay your attorneys’ fee. Experts may have to be hired.

Then there’s the cost for the time to actually go into court for appearances and hearings. If required, co-parenting classes and/or the preparation of a parenting plan can add thousands to your final legal bills. A trial could cost $10,000 and upwards, an appeal another $15,000. Many people choose to mediate their family law issues because of the savings both monetary and emotional, and the fact they can play a direct part in forming their family law solution.

Divorces Rise as Economy Improves

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Recent Spike in Divorce Filings Tied to Economy

Like everything else, divorce statistics are cyclic. With the U.S. economy reportedly on an upswing after a six-year recession, couples continually unable to resolve financial problems are deciding to call it quits. The federal government’s National Center for Health Statistics reports a rise in divorce filings for the third year, reportedly signaling a recovery of the ‘great recession,’ which reportedly hit rock bottom in 2008. Finances are frequently one of the most common stressors in many relationships. Marriage further complicates many ‘financial issues’ faced daily if the couple is out of sync in their views and practices of  personal finance. While one partner in the marriage may be frugal with money, a partner who is reckless with finances could instigate financial woes that the couple must resolve together. If weathering the debt storm as a couple becomes impossible, the next step might be dissolution.

Many options are available for divorcing couples when both parties wish to remain amicable. Couples who are not able to end the marriage amicably will need a ‘traditional divorce,’ requiring an attorney who will fight their battle before a judge to protect their marital interests. Using a board-certified family law specialist to represent a party in the process allows for informed decisions about the dissolution process and settlement. Simple divorces can be complicated for litigants representing themselves. Because of this, many do-it-yourself cases languish in the court system for years.

Cooperative and Non-Traditional Divorce

Rent-A-Judge, Mediation, Collaborative are all non-traditional paths to divorce many couples take when they are agreeable to ending the marital contract. Divorce can affect the quality of a person’s  lifestyle for the rest of his/her life. So whatever method is chosen, it is necessary to be informed of the options and how they work.

Rent-A-Judge

Private judging, known as “Rent-a-Judge,” involves a private process in which divorcing parties give a private individual the power to hear and decide their case. Private judges are an ideal alternative for wealthy couples who want their dissolution settled privately, quickly and amicably.

Mediation

Mediation is used to settle disputes as well as divorce while remaining flexible and confidential. With mediation, a neutral third party works with the couple to develop a settlement agreement. The neutral third party is known as the mediator. The mediator assists the couple in their decision making process. Mediators help keep the couple focused on the issues at hand while keeping them on track toward a settlement. Sometimes agreements come easy and sometimes they take time and a lot of work. When agreements are hard to reach, it’s the mediator’s job to intervene. Mediation has the ability to help the couple learn to communicate again and possibly make their post-divorce relationship better than their married one.

Collaborative Dissolution

Collaborative divorce was designed to resolve conflicts in a mutually agreed-upon process. Rather than turning the decision-making power over to a judge or other third party, control of the dissolution process is kept with the people directly involved in the marriage. Clients and their individual attorneys are at the heart of helping explore solutions for planning into the future. If children’s issues are part of the marital dispute, their needs are always placed first. Through the collaborative process documents are drawn up consensually and a settlement agreement is not signed until both parties are comfortable with the final agreement. The respective lawyers are disqualified from representing either party in any future family related litigation if the collaborative process fails.

When Divorce Requires Hiring An Attorney

If your situation requires the expertise of an attorney, remember that you must be prepared to share intimate details about your marriage, finances and personal life.  A big complaint about family court is that the process is too complicated and there are too many time consuming forms and procedures. Organizing your personal finances and important documents in chronological order will assist your legal team to help keep your finances intact and your legal fees down. Do not confuse your attorney with your therapist. When calling your attorney the time clock is ticking whether you have an actual legal question or if it’s just to complain about your spouse.

Your attorney should share your views and philosophy on divorce, especially if it is your intent to keep things cooperative and non-adversarial. If you make sure your lawyer understands you want an amicable divorce upfront, that’s what you will get from a board-certified family law specialist.

RECENT CALIFORNIA LAW CHANGE AFFECTS ASSETS OF THOSE ALLEGED TO ILLEGALLY HOLD THEIR CHILDREN

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Ah yes, California lawmaking at its finest.  For those who missed it, California’s legislature, in its great wisdom, has once again effectuated new legislative amendments that will have an affect on how child custody is handled in California.  In amending sections 2040 and 3134.5 of the California Family Code, the lawmakers amended California family law to:

  1. add a passport restriction to the automatic temporary restraining orders (ATROs) in the family law summons, and
  1. authorize a court to include a provision in a protective custody warrant that freezes the California assets of a party alleged to be in unlawful possession of a  child.

This January 1st 2013 piece of legislation is entitled SB 1206. The law used to provide for ATROs on the reverse side of the family law summons, which include in part a restraint on removing the minor child or children of the parties, if any, from the state, without the prior written consent of the other party or an order of the court.  (Family Code §2040(a)(1)). This restraint, under SB 1206, will now include the provision that a party must not apply for a new or replacement passport for the minor child or children without written consent of the other party or a court order. (Family Code §2040(a)(1)). The new senate bill also amends the protective custody warrant provisions of Family Code §3134.5 by authorizing a court to include in such a warrant a provision to freeze the California assets of the party alleged to be in unlawful possession of the child.  Under this provision, “assets” include funds held in a depository institution that is defined by California law.  (Family Code §3134.5(c)). By means of a noticed motion, the freeze may be terminated, modified, or vacated by the court on a finding that the release of the assets will not jeopardize the safety or best interest of the child.  (Family Code §3145.5c).  The warrant itself may be dismissed by the court on the basis of a declaration by the district attorney that the child has been recovered or the warrant is no longer needed in that case, if an asset freeze was earlier imposed, the depository institution must be immediately served with notice of dismissal of the warrant.  (Family Code §3134.5(b), (d)).

STRICT STANDARDS APPLY FOR NATIVE AMERICAN CHILDREN CAUGHT IN JUVENILE COURT MEATGRINDER

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A recently tragic case has been decided by California’s appellate court, involving the Indian Child Welfare Act (ICWA), two poor Native American children and their desperately indigent parents.  In its ruling, the appellate court justices affirmed a juvenile court ruling stating that the juvenile court did not err when it concluded that adequate ICWA notice had been given to applicable tribes, and that the ICWA did not apply, where tribes stated that filing additional notices would be futile and the two children could not be tribal members because their mother claimed Indian heritage through former freed slaves of the tribe.

The pertinent facts of the case In re D.N. (8/14/13) 2 Civ B245303, Div 4 (Epstein), are:  in June of 2010, the Los Angeles County Department of Children and Family Services (DCSF) filed dependency petitions that sought to have the two children (Child1 and Child2) of Mother and Father adjudged dependents of the juvenile court, based on Mother’s long history of substance abuse and Father’s failure to provide for his biological child, Child2.  Father was presumed to be the father of both Child1 and Child2.  Upon Mother claiming to have Choctaw Indian ancestry, the juvenile court ordered DCSF to send ICWA notices to appropriate Choctaw tribes as well as to the Bureau of Indian Affairs (BIA).

In July of 2010, DCFS sent notices to three (3) Choctaw tribes, the BIA, and the U.S. Department of the Interior, each of which listed Mother’s father and paternal grandmother as Choctaw.  Initially, Father had claimed Cherokee ancestry, but could provide no names of relatives who could provide any semblance of verifying information.

Although the juvenile court ordered DCFS to send notices to Cherokee tribes and the BIA.  DCFS reported that Father had failed to cooperate in that effort.  Father’s attorney stated on record in Father’s presence that “Dad says he’s got no ICWA.”  The juvenile court then made findings that ICWA did not apply to Father, that Father had rescinded his prior claim of Cherokee heritage, and the dependency petition should be sustained and amended.  The juvenile court placed the children with Father and transferred their case to another department.

In January of 2011, the DCFS filed a supplemental petition, alleging that Father was unable to provide for his two children.  The juvenile court ordered the children to be detained and placed them in foster care.  This juvenile court was unable to determine whether adequate ICWA notices had been given and ordered DCFS to file the responses it had received from the Cherokee and Choctaw tribes.  DCFS advised the juvenile court that ICWA had previously been found not to apply to Father and that three Choctaw tribes had found that neither child was eligible for tribe membership.  The juvenile court still ordered the case continued so that DCFS could send proper ICWA notices to the involved tribes.

In March of 2011, the DCFS sent new notices to the three Cherokee tribes, the Choctaw tribes, and the BIA.  One month later, the juvenile court sustained the supplemental petition, ordered both children removed from Father’s care, and ordered reunification services for Father and Mother.  But the juvenile court stayed those orders pending responses to ICWA notices.

In June 2011, DCFS re-sent the ICWA notices.  Between March 2011 and June 2011, DCFS received responses from all noticed tribes.  They all stated that the two children were not eligible for tribal membership.  The Cherokee Nation, along with its response, sent additional information from its files regarding Mother’s ancestors.  Nevertheless, the juvenile court found that the notices were incomplete because they did not include that information and ordered DCFS to send new notices using the parents’ birth certificates.

In September, the DCFS sent new ICWA notices that included the children’s, Mother’s, and Father’s birth certificates, along with additional information regarding Mother’s and Father’s ancestors.  In response, the Cherokee Nation requested additional information re father’s ancestry.  In the meantime, Father visited with the children only once, and had not contacted the DCFS in nearly a year.  DCFS then informed the Cherokee Nation that it could not provide any additional information.  Later, in response to all the September notices, all the tribes responded negatively regarding the children’s eligibility re tribal membership.

In January of 2012, Mother, at her hearing, submitted her aunt’s tribal enrollment number, which the DCFS later gave to the Choctaw Nation by letter and by phone.  The Choctaw Nation, in response, again stated that the children were not eligible for tribal membership.  They added:  “The Choctaw Nation has exhausted all resources and we have determined ICWA will not and does not apply, the tribe feels that we have done a thorough job and sees no reason to continue any further inquiries.”  In a follow-up e mail, the Choctaw Nation emphasized that they will not spend any more time on this case as “it is futile.”  The Choctaw Nation closed by reminding the DCFS that “eligibility for membership is determined by the tribe” and its decision “is entitled to deference and full faith and credit.”

The following month, the juvenile court in Los Angeles found that proper ICWA notices had been sent to the Cherokee tribes.  However, after Mother had submitted information to the effect that her ancestors were listed on the Choctaw Nation Freedman Role, the juvenile court considered sending a further notice to the Choctaw Nation.  Upon the DCFS reminding the juvenile court of the Choctaw Nation’s latest responses, the juvenile court found that adequate notice had been given and that the ICWA did not apply in this case.

Mother continued her efforts to get the children enrolled in the Choctaw tribes, but the juvenile court declined to give her any more time to do it.  The juvenile court then terminated Mother’s and Father’s parental rights and set adoption as the permanent plan for the children.  Both Father and Mother appealed, but California’s Second Appellate District affirmed.

In its holding the panel found that:

  1. That DCFS did attach adequate documentation of Mother’s ancestry to notices sent to the Choctaw tribes;
  1. Mother’s ancestors’ listing on tribal freedom rolls does not help Mother’s pursuit of tribal membership for her children because those rolls list former slaves of the Choctaw tribes who were freed after the Civil War but did not have blood ties to the tribe; and
  1. the Choctaw Nation made it clear that only those with blood ties to the tribe may be eligible for tribal membership.

And two more children were removed from their parents, and devoured up by the system.

FOUR IMPORTANT TIPS FOR SAME-SEX MARRIAGES

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Having a successful marriage is a difficult proposition at best.  Marriages can be filled with the same duality of ups and downs that we face as individuals going through life.  Gay marriages offer the same pendulum of give and take, compromise and communication as their heterosexual counterpart, but they too more often than not end up in divorce.  And same-sex divorces might be even tougher these days than the marriage themselves.

This is due in large part to the fact that gay marriage is legal in only thirteen (13) states in our union and the District of Columbia.  So if a same-sex couple lives in one of the other 37 states, and wants to marry, they have to go to DC or one of the legal 13 to marry, then they return to their home state to live happily ever after, right?  Well, it’s not always that simple.  Many times, these couples face the realities of a marriage gone awry, and the parties decide to part and go their own ways.  But how do they divorce legally since their state doesn’t even recognize their marriage as being legal in the first place?

Thousands of couples potentially face this issue right now.  To obtain a divorce they would need to go back to a state that recognizes their legal right to marry and then establish legal residency there.  Or the state might impose other onerous requirements for their divorce.

Recent statistics indicate that same-sex couples divorce at half the rate that heterosexual couples divorce.  That figure is expected to rise as more gay couples seek divorce, and the states’ laws likely catch up with that rise.

The key to all this is to be smart.  And here’s four tips on how to be smart regarding same-sex marriages and divorce:

1) Before marriage, consult an experienced family law attorney When it comes to marriage and divorce, whether same-sex or heterosexual, there truly is nothing more important than a professional who is looking out for your best interests. Certified family law specialists are just that: family law specialists. Find one who can handle complex issues like estate planning and custody. There are also organizations such as Lambda Legal and the National Center for Lesbian Rights who can provide information.

2)      Consider creating a pre-nuptial (or a postnup, which is recognized in most states) agreement.  A written agreement between wedding parties can be important to help detail ownership of assets accrued by and between the parties during their relationship.  The truth is, all money and property issues can be settled without the need of a court or a judge.  All the parties have to do is sit down and agree to who owns what and who gets what in case of a split.  Such agreements are legally recognized in every state.  And even if the state you’re living in doesn’t recognize same-sex marriages, ancillary matters such as financial issues can be settled which would allow the parties to move forward while awaiting the legal drama of their divorce to play out.

3)      If possible marry in one of the states or other jurisdictions that grant divorces without onerous residency requirements.  California is one of those states.  So are Minnesota, Delaware, and Washington D.C.

4) Regarding potential child custody issues, if either party should have a child during wedlock, the non-biological parent might consider legally adopting the child at the time of birth. Even if the same-sex marriage is not legally recognized by that state, the state will recognize the legality of the adoption.

Again, as in any legally binding relationship, homework and due diligence are important.  Know what you’re doing before you enter into legally binding contracts such as marriage.  Consult with a family law specialist.  Know the laws of the states you’re dealing with.  Be smart.  And build a legally and fundamentally strong foundation that will bring peace to you and your soon-to-be family.

DIVORCE THRIVES IN IMPROVING ECONOMY AND HOUSING MARKET

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Just when you thought you might not be able to afford to get a divorce, this just in: improving economy and housing market make getting a divorce affordable, again.  Oh, joy.  It’s time to break up the family, because, well, we can afford to.

According to the Los Angeles Times, the improving economy and booming housing market have prompted more people to get divorced.  Yay for them.  Money, or a lack thereof, no longer needs to lead to unhappiness.  Instead, couples may now divorce a little easier than before.

According to the article, the recession had caused many couples to stay together because their homes were a financial mess or one or both parties were out of work.  When the recession had hit, home prices plummeted, home equity became scarce, and couples had fewer assets to play with.  Divorcing couples faced greater financial loses.  But now, the housing market is in a rebound, and interest rates are at historical lows.  Couples are experiencing new wealth they can now use to divorce from each other.

Rising inflation and falling housing prices put pressure on marriages and help to contribute to higher divorce rates.  The same factors also apply to making divorce more complicated.  Falling property prices mean that selling the family home may not provide sufficient funds for two separate homes, especially with lenders being so much more selective in who they lend to.

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