Articles on Divorce: General

Be Informed

As the old saying goes, "Knowledge is Power". Mediators come in all shapes and sizes with different levels of training and experience. They view their jobs from varied perspectives. While some mediators are more directive than others, the role of the mediator is to act as a neutral. The mediator is not to advocate for either party but to help you and your partner reach an agreement that you both feel is fair and equitable. I feel that as a mediator I should provide my clients with a basic understanding of their rights and responsibilities, particularly if they are not working with independent counsel, or when one of the parties has very unrealistic expectations or there is a huge power imbalance between the parties. However, not all mediators feel the same way and some will not inform you of your rights and responsibilities under the law. Therefore, before you enter mediation you should be aware of your rights and responsibilities.

You can use the services of a consulting attorney before, during or even after mediation. The consulting attorney can help empower you so that you can negotiate during mediation from an informed position. At minimum you should retain the services of an attorney to review your meditation agreement or your marital settlement agreement prior to signing the documents.

When you meet with the mediator come prepared. Under California law, you owe your partner a fiduciary duty to provide all financial information. A fiduciary duty is the highest level of duty possible. It is the duty owed to you by your doctor, your lawyer, your certified public accountant, your therapist, your insurance company and your bank. Failure to provide full disclosure of financial information can have dire consequences such as having to pay your partner's attorney's fees and costs, losing an undisclosed asset and the loss of trust of your partner. You may recall a case involving a lottery winner (Rossi) who failed to tell her husband that she had won the lottery and kept the prize all to herself. The judge ordered that all of the winnings be awarded to the husband because the wife hid the funds from the husband.

There are documents that you are required by state law to complete regarding your finances. These are called an Income and Expense Declaration and a Schedule of Assets and Debts. They take some time to complete and may seem cumbersome since there is considerable detail required. These documents, when properly completed, also serve to provide your mediator with a clear understanding of your financial picture. A mediator, no matter how experienced or competent has little or no idea of your needs or lifestyle without these completed documents, so do your homework. I often recommend that clients use the services of a paralegal or financial professional to assist them in completing these documents when the task seems daunting.

If you and your partner will be sharing custody of your children, it will be helpful for you to have given some thought as to how you would like to share time with your children, considering foremost your child's best interest, your work schedule and resources. Preparing a few alternative schedules for discussion can help you and your partner to address the issue of how you will co-parent your children. If you would like to have your partner agree to a parenting plan that gives you each a good deal of time with your children, be prepared to illustrate to the other parent how your proposed plan(s) will work. For example: how will you arrange to pick up your children on your days; what kind of child care arrangements need to be made to make your plan work for your children; how will you provide for meals and clean clothes if these were not tasks you performed while you were living with the other parent.

Family law matters are extremely emotional. Most individuals faced with a separation, divorce or a paternity action are feeling a flood of hurt, sadness, disappointment, anger, confusion often coupled with physical symptoms which disrupt their daily lives. I believe that every person addressing family law issues should obtain counseling services to help them through the process. There are divorce coaches and parenting coordinators that can facilitate the divorce process as well as help you and the other parent co-parent.

There is an emotional component to mediation. In my opinion, it is impossible to mediate effectively without addressing certain feelings. However, mediation is not the place to address all the things that went wrong in the relationship or to blame your partner or worst yet to insult your partner. If your goal is to settle your family law issue in mediation you must realize that no one in their right mind is going to be more open to your point of view after you call them names or insult them. While I believe that it is perfectly acceptable behavior during mediation to say that you are angry, hurt, or disappointed, a hostile and disrespectful approach to your partner will only lead to more emotional damage and higher costs. If you engage in hostile outbursts, your mediator will have to spend a substantial portion of your appointment playing referee and trying to rebuild the process rather than working with you toward solutions. Using the mediation appointment for outburst is a very poor use of the investment you are making in the mediation process. Inappropriate behavior may cause your partner to end the mediation and run to a litigator who will be happy to see you in court. Be calm and respectful of your partner and recognize that happiness is the best revenge.

Mediation is intended to be a process that helps couples find fair and equitable solutions. It is not an opportunity to take advantage of the other partner or to be a doormat. On any given day you are likely to get a "fair deal" in court but it will be expensive and you will have little feeling of control over your life. The judge will have the power to order you to see your children on a schedule that he/she thinks is appropriate. The judge will also have the power to order you to divide your assets as he/she thinks is fair and to order support based on his/her Dissomaster calculation. Mediation keeps the power with the parties and may save you time and money. My average mediation is resolved within three or four months, a short period of time compared to some couples who may fight in court for years.

A good mediator will help to equalize the power between the parties but you have to take responsibility for your actions. The mediator is not an advocate and can only go so far in protecting you from your partner or yourself. Mediation can be a chance for you to try out a different role from that which you had in your relationship. Counseling or coaching can be of tremendous help in addressing anger management issues as well as an inability to be assertive.

In most relationships there is a division of labor. Sometimes that division is decided by individual talents and skills and sometimes it is decided by the person who has the most power in the relationship. After separation, you will be responsible for all the tasks that are required to run your own residence and take care of your children.

If you never kept track of the finances during the relationship, this may be a perfect time for you to empower yourself by becoming more knowledgeable about financial matters. You can opt to meet with a financial professional, such as a Certified Public Accountant who can assist you to plan for your future and help you answer questions such as how much money you will need, what you can afford to spend on housing and other questions related to support.

If your partner has a very different parenting style than your own and this has presented difficulties in parenting you may want to use the services of a parenting coordinator to assist you in determining how the two of you can effectively co-parent your children. You may also need to learn other skills such as cooking simple meals for yourself and your children. There may be a need for you to consider hiring a tutor for your children if you are unable to assist them with some school work while they are in your care. When you have a plan as to how to address your needs and the needs of your children you will be less stressed and your partner will be much more open to your position.

Be Open and Realistic

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