What to Expect in Divorce Mediation

March 7, 2017

When shopping for a good mediator, here is what you should be looking for. Mediators who settle cases efficiently and fairly do the following:

  1. Key Issues. Help you figure out what the real issues are and focus in on these matters.
  2. Goals. Help you formulate your goals and keep you on track towards reaching these goals.
  3. Fair Process. Ensure that the settlement process is fair for both parties by evening-up the playing field in terms of power and knowledge.
  4. Documents and Information. Assist in formulating a list of necessary documents and information so that you do not get overwhelmed at this emotionally difficult time.
  5. Sorting and Categorizing. Assist in the efficient sorting and categorizing of key facts, laying out the family financial picture, determining which issues are emotional/personal versus matters which can actually be settled in mediation, and determining which battles are worth fighting.
  6. Education. Educating and informing you with regard to relevant legal, financial, tax and child-related matters.
  7. Negotiation Techniques. Use of time-tested negotiation facilitation techniques (e.g. neutralizing language, focus of needs versus strategy, ensure key information is understood, focus on problem solving versus punishment).
  8. Property Settlement Agreement. Provide excellent skills in writing up your Property Settlement Agreement. This is the court-ready document that sets forth your entire divorce settlement agreement. An experienced lawyer-mediator is usually best when it comes to writing up such a document.

By Erin Brockman, Mediation, Research & Marketing Assistant
Robin Graine, JD, CDFA

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Harsh Exposure of Divorce Lawyers & Courts: The Divorce Corp Documentary

July 7, 2015

UYe2xpOm.jpegDivorce Corp http://www.divorcecorp.com/ is a 2014 documentary film, directed by Joe Sorge, that exposes the inner workings and, in their own words, “the appalling waste and shameless collusive practices” seen daily in U.S. family law courts. This film presents a shocking viewpoint on the divorce industry, divorce lawyer practice, and the family law court system in the United States.   Divorce Corp’s goal is to make the viewer feel enraged toward the family law courts and the divorce attorneys who, they say, take advantage of individuals who are in a weakened emotional state.

The statistics presented in Divorce Corp are alarming.  For example, the producers estimate the total costs of divorce to be $50 Billion Dollars per year! In relatable financial terms, Divorce Corp estimates that the total dollars spent by Americans on their divorces, each year, is equal to the dollars needed:

  • To produce a healthy lunch for every child, every day, grade school through high school, in North America, South America, and Africa;
  • To pay the tuition for 5 million college students;
  • To fund the research and development of 50 new medicines each year.

While these statistics are tremendous, they do not compare to the wickedness that Divorce Corp asserts that the family law court system and their main players, the divorce attorneys, are capable of. The goal of Sorge and his guest “experts” is to prove that there is mass corruption in the family law courts in the United States.

They spend much time on the fact that family law courts are “courts of equity”, meaning that there are no juries and no right to an attorney –- despite the fact that people’s basic rights, such as the right to raise and enjoy the companionship of one’s children and the right to use and distribute one’s own hard earned money as the earner sees fit — are taken from them every day in divorce court.

Judges, they tell the viewer, have the authority to order complete liquidation of the parties’ assets and to issue restraining orders, even when there is very little evidence to support such a deprivation of liberty and seizure of real estate, personal property and money. Divorce Corp presents these facts in such a light as to make the viewer almost queasy at the thought of how one all-powerful judge can make extreme decisions, without even the nominal due process protections afforded criminals, and how an individual can be completely railroaded by the family law court – and pay for that railroading out of his or her own pocket!

The facts and statistics that Divorce Corp presents are deeply unsettling; but a skeptical eye is necessary considering the extreme sensational manner in which the information is presented. The producers of this documentary film focus on the absolute worst-case divorce scenarios and only showcase the most egregious of problems that individuals have had with family law judges. Though there is no doubt that these terrible situations occur, most reasonable viewers would have to wonder just how often and/or how likely these incredibly horrendous situations arise?  Divorce Corp’s modus operandi is to make it seem as if everyone getting a divorce will be severely overcharged by their divorce attorney and will, chances are, experience a corrupt judge who is out to ruin one of the spouse’s lives.

Though Divorce Corp did a sensational job of presenting the horrors of the divorce industry, divorce lawyers and the family law courts, it did not offer an alternative solution to that system, nor did the writers, director or “experts” provide any guidance whatsoever as to what could be done to reform the family law court system. No alternatives to litigation were presented and this is a shame considering there is a very effective and sensible alternative to divorce litigation: Mediation.

Parties that mediate the settlement of their divorce are able to avoid the court system and remain in control of their children, their assets and their future.  The parties create their own personalized settlement agreements, which include all matters of custody, child support, spousal support and the distribution of property and debt, by working together, with the help of a neutral party, i.e. the Mediator.   The Mediator works with the parties in four specific areas:

  1. Pinpointing relevant issues for settlement (usually eliminating strictly emotional issues that merely inflame parties and fuel litigious behavior);
  2. Gathering information about the children and all other relevant factual and financial information necessary for the parties to make sound settlement decisions for the present and the future (as much as practically possible);
  3. Sharing of information by the Mediator which is important for the parties in making fair and informed settlement decisions (e.g. divorce law and legal culture in the area, divorce tax law, expert information related to the effect of divorce on children and potential financial implications of various settlement decisions); and
  4. Assisting the parties in their negotiations and in reaching compromises that are mutually agreed and that give each of them the best possible opportunity for a fresh start.

Mediation prevents one spouse from gaining power over the other spouse, eliminates the aspect of an all powerful judge, helps individualize the settlement based on the needs of the family and costs a fraction of what divorce litigation costs.  As the producers of Divorce Corp correctly point out, litigation often creates more problems and difficulties for divorcing parties than it solves. Instead of focusing on helping divorcing men and women move forward with their lives, litigation tends to drag them back through all the difficulties of a marriage that has, for all intents and purposes, already ended.

Written by Jessica Wilds, Mediation Assistant

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


Child Custody In a Virgina Divorce: Legal Custody & Physical Custody Defined

June 9, 2015

child custodyWhen discussing various parenting arrangements with clients and prospective clients, I have learned that most people who are in the midst of a divorce/separation, or are contemplating such an event, make similar mistakes when it comes to Virginia “custody terminology”.

Such vocabulary faux pas are hardly indicative of a parent’s heartfelt desire to spend time with his or her child.  However, it is usually helpful to clients when they begin to get a handle on how the Commonwealth of Virginia goes about assigning labels in the context of divorce and co-parenting.  (Co-parenting refers to any situation when two parents are raising a child, in two separate households, whether or not those parents were ever married).

Of course, your mediator or divorce lawyer should certainly be able to figure out what you mean – no matter how you phrase it – when it comes to your desires for your child’s future parenting arrangements.  Not all mediators or divorce lawyers, however, do a good at explaining legal terminology.  The same goes for clients’ ability to absorb and process information in such a stressful and confusing time.

As a result, I have seen plenty of post decree (after divorce) situations where basic misunderstandings of the custody terms in the parties’ Final Order of Divorce (aka Divorce Decree) kept them fighting about their child several years after their separation and divorce.

To help alleviate this unfortunate and rampant misinformation about various custody terms in Virginia child custody cases, here is my “Virginia Custody Dictionary.”

Legal Custody:

Determines which parent has the right to make major decisions concerning their child.  Legal custody has nothing to do with where the child lives.

There are two types of Legal Custody:

    (1) Joint Legal Custody –  

        Major decisions must be agreed to by the parents.

    (2) Sole Legal Custody –

        Major decisions need only be made by the parent who is granted Sole Legal Custody.

  • The term “Legal Custody” is not intuitive to most people and problems often arise, down the road from when the settlement agreement is signed/Court order is entered, over the parents’ often diametrically opposite interpretation of the term “major decisions”.
  • Mediators encourage clients to jointly define the term “major decisions,” as part of the settlement of the custody issues in their particular case, to help save them from possible trouble down the road.
  • On the other hand, divorce lawyers tend not to focus on crafting an agreed client-interpretation of the term “major decisions”. Instead, they leave it up to the Courts to decide, should there be a problem in the future, whether a decision made, or to be made, by a parent is, in fact, “major”.  Ultimately, the Courts do have final decision-making power; but, a meeting of minds between parents is usually enough to end bitter battles before they start.
  • Examples of “Major Decisions” – Those decisions which are generally agreed by divorce lawyers and courts to be “major decisions”:
  1. Which school the child will attend;
  2. Whether the child will be required to undergo an elective medical procedure (e.g. plastic surgery on a scar);
  3. Whether braces will be placed on a child’s teeth for purely cosmetic reasons;
  4. Whether a child will be required to engage in psychotherapy;
  5. Who will be the child’s substitute caretaker necessary for the parents to earn a living (known as “work related childcare”, aka WRCC); and
  6. Choice of sleep-away camps.
  • Examples of “Gray Area Decisions” – Where decisions may or may not be considered “major”:
  1. Which week or two-week long camp a child will attend in the summer (not sleep-away camps);
  2. Which extracurricular activities a child will participate in during that parent’s custodial care time.
  3. Whether a child will participate in a specialized academic program during school hours (remedial or enhanced learning);
  4. Whether a child will participate in various in-school clubs, groups and activities;
  5. Choice of classes (middle school and high school);
  6. Choice of basic disciplinary techniques;
  7. Choice of how much to give a child for allowance/spending money; and
  8. Choice of vacation destinations with children (within reason);
  9. Choice of children’s playmates.

Physical Custody:

Determines where the child will live and the amount of time the child will spend with each parent.

Physical custody pertains to which parent (sometimes both, sometimes only one) has the primary responsibility for the care and control of the child on a given day.

  • Day to day decisions, of a routine nature, are made by the parent with whom the child is being cared for on that day.

 

Sole Physical Custody:

  • In Sole Physical Custody situations, that parent is granted all (or almost all) of the custodial care rights and responsibilities for the child.
  • The other parent is not usually involved in day-in-and-day-out responsibilities that come with raising a child.
  • The other parent is usually permitted “visitation” with his or her child (except in cases where that parent would present a danger to the child);
  • In Virginia, even in cases where one of the parents is granted Sole Physical Custody, the other parent still has the legal right to review the child’s medical and academic records (with exceptions);
  • To add to the confusion, when calculating Virginia Child Support Guideline Obligations, the “regular” calculation is called the “Sole Child Support Calculation”.  This poorly named calculation simply means that the non Primary Custodian cares for the children fewer than 91 days per year,2  even though the caretaking duties may clearly be shared between the parents.
  • Advocating for the denial of a parent to be involved in major decisions concerning his or her child is serious. It generally means that there is something very wrong with one or both of the parents’ ability to care for the child and/or use sound judgment when making decisions concerning the child.
  • In cases where one or both of the parents thinks that a child should have no or very little custodial care time with the other parent, it is often advisable that those parents litigate (hire a divorce attorney) and not mediate their cases.

Shared Physical Custody:

  • In Shared Physical Custody situations, it is presumed that both parents are involved, to a much greater extent than in a “Sole Custody” situation, in the day-in-and-day-out responsibilities that come with raising a child.
  • However, Shared Physical Custody does not, necessarily, mean 50/50.  It does, however, mean that there is a discernible sharing of parental caretaking duties for the child.
  • The term “Shared Physical Custody” is not clearly defined in Virginia law in terms of custody and parenting arrangements.
  • To add to the confusion, when calculating Virginia Child Support Guideline Obligations, there is a special calculation available for situations where a “non-primary custodian” cares for a child 91 or greater days per year.  That calculation is called the “Shared Child Support Calculation.” The Virginia Shared Child Support Calculation is able to accommodate various ratios of caretaking duties (e.g. 50/50 custody, 60/40 custody, etc.).

Primary Physical Custody:

  • The parent who is the “Primary Physical Custodian” is usually the parent who cares for the child greater than 50% of the time.
  • The term “Primary Physical Custodian,” however, is not well-defined in Virginia law.  There are situations where parents have less than a 50/50 custody share (exp. 60/40, 70/30), but where a settlement agreement/Court Order show that the custodial care plan is “Shared Custody” (even though there is, by most standards, a “primary parent”).
  • Some divorce attorneys are concerned that a judge may allow a parent, who is referred to as the “Primary Custodian,” in the settlement agreement/Court Order, to have more potential influence in possible future battles involving the child (e.g., moving away with the child).
  • If a parent is referred to in a settlement agreement/Court Order as the “primary custodian,” a school district may defer to that document when determining which school a child should attend.  (See previous Blog article: https://fairfaxdivorceblog.com/?s=prince+william )

In certain situations, and if there is no tax planning as part of the parties’ settlement, The IRS automatically awards certain child-related tax benefits to the “Custodial Parent”.  The IRS does not use the term “Primary Parent”.  The “Custodial Parent,” in terms of tax law, is the parent who cares for the child greater than 50% of the time during that tax year.  If the settlement agreement/Court Order conflicts with the actual caretaking schedule, this could present a problem if both parents wish to claim the child as their dependent exemption. This is not a problem, however, if parents insure that the settlement agreement/ Court Order matches their actual caretaking activities and if they make sure that tax planning is a part of their settlement (as it should be). (See previous Blog article https://fairfaxdivorceblog.com/?s=tax+custody )

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


Divorce Lawyers Vs. Divorce Mediators: How They Approach Child Custody

May 26, 2015

istock_000018888305small300Parents who divorce are faced with many decisions about how their children will be cared for post-separation.  Divorce attorneys and divorce mediators have different approaches when helping clients formulate custodial care plans.

Divorce attorneys often focus on:

(1) The type of custody a client wants for him or herself (e.g. sole custody, primary custody); and

(2) Winning that custody for the client through strategic legal maneuvering and traditional bargaining tactics.

Divorce mediators tend to focus on:

(1) Formulating mutually agreeable parenting arrangements that are best suited to the child’s needs; and

(2) Assigning “legal labels” (e.g. primary custody, shared custody) to the the parenting arrangements only after the custody decisions are determined.

 

KEY CONSIDERATIONS FOR CHILD CUSTODY DECISION MAKING

Until parties truly understand how their children will process and handle their parents’ divorce, child custody decisions need to be approached with great caution and sensitivity to the child’s basic need for:

(1) affection from both parents;

(2) bonding time with both parents;

(3) enough time to experience both parents’ influence and role modeling;

(4) routine and structure; and

(5) a sense of rootedness (home, school, community).

 

WHY CHOOSE A DIVORCE MEDIATOR?

  •  Child Centered.  Divorce Mediation is child-centered and consists, primarily, of neutral facilitation of parents’ discussions and creative problem solving.  
  • No Games. There are no games or intimidation tactics that are usually employed by divorce lawyers.
  • Confidential. Everything in mediation is confidential.  This allows parents, without the concern of “blowing their legal strategy”, to speak freely and honestly.
  • Everything on the table. Mediation encourages comprehensive conversations about their child and how best to parent him or her in the unsurprisingly complex two-home structure necessitated by divorce.
  • Cooperation. Mediators are skilled at nurturing cooperation between parents.
  • Perspective. In mediation, parents are usually able to see disputed custody issues from various perspectives.  Usually, both parents have good ideas to share.
  • Information & Knowledge. Experienced mediators have practical information and empirical knowledge to help clients make decisions on behalf of their child that both parents are comfortable with.

WHEN IS IT BEST TO CHOOSE A DIVORCE ATTORNEY OVER A DIVORCE MEDIATOR

  • Abuse. Where there is a history of child abuse (physical or sexual) or domestic violence, parties are usually better off having the protection of the Courts and a divorce lawyer right from the start.  
  • Not living in reality.  Parents who are mentally ill or have a personality disorder such that they cannot distinguish reality from fantasy are not good candidates for mediation.  They need a divorce lawyer to advocate on their behalf.
  • Punishment. Parents who are adamant that they want their child’s other parent punished – and believe that the Courts will do that for them (which they almost always do not do) – need to hire a lawyer.  Mediation is not punishment-oriented.
  • Need to win.  Some parties need to win.  Cooperation and mutually agreeable decision-making is not for everyone.  Parties who believe they are dead “right” with regard to what is best for their child in every way, and that the other parent is “wrong” on those matters, need to hire a divorce attorney.  Most mediators don’t think in terms of “winning” when it comes to children.

CHOOSING A MEDIATOR STYLE

There are as many styles of mediation as there are mediators.  If you choose mediation as your method of determining the parenting arrangements for your child post separation/divorce, make sure you are comfortable with the mediator’s approach and style.  Talk with him or her a while before committing to your first mediation session.  Ask questions.  A good mediator will be happy to ensure that both parents are comfortable with the process and that the personalities make a good fit before setting the first session date.

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


Divorce and Your ADD/ADHD Child

February 24, 2015

ADHD_classroomIf you are in the midst of a separation or a divorce, and have a child with diagnosed ADD or ADHD, there are things you can do to make the transition easier for him or her.

First, recognize that your child especially needs structure and order to best perform. As you go through your separation or divorce, it may feel like life has been tipped upside-down to your child. They may be spending time in two households, instead of one. Their daily routine may be interrupted and changed. It may feel harder for them to know what their schedule is on any given day.

Because of this, separating parents should be actively focused on effective co-parenting. Make and enforce similar schedules, so that your child has consistency. Psychologist Judith Glasser, Ph.D., suggests imposing similar bedtimes and amount of screen time allowed.[1] Consider setting up a shared Google Calendar account, so that your child’s schedule will be in one centralized location.

Second, be mindful of the amount of conflict your child is exposed to. While this is good general advice during a divorce, conflict is especially disruptive to a child with ADD/ADHD. This kind of disruption can actually exacerbate the symptoms of their condition.

Psychiatrist Mark Banschick, M.D., describes this in his article for PsychologyToday.com. “Children with ADHD have trouble regulating their emotional responses and the turmoil of a divorce may lead to volatility.”[2] That means your child, whose symptoms were otherwise being managed effectively, may now be acting out more than ever. A good way to mitigate the effects is by considering mediation over litigation. Studies have pointed to the idea that divorce mediation reduces conflict, while litigation increases it.[3]

Third, recognize that your attention may be diverted at times by your divorce, and you will need help. Reach out at the beginning of the process instead of waiting until you feel you’re underwater and you don’t have time to help your child manage his or her ADD/ADHD. This may mean more than just asking friends and family for help. Consider speaking to parenting or family counselors who can help you with your child’s specific needs.

And finally, keep your child’s special needs in mind when drafting your financial agreement. Again, Judith Glasser: “The cost of specialized services for children with ADHD should be considered as parents make decisions concerning child support and spousal support. Children with ADHD may need specialized services such as psychiatric care, individual, group and family psychotherapy, tutoring, coaching and private school. These are expensive and need to be considered in the financial agreement.”

These are good general guidelines for helping your child with ADD/ADHD cope with your divorce. However, every family is different. It is up to you to be proactive and find the help that is right for your situation.

Posted by Jane Baber, Mediation Assistant

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.

[1] http://www.childandfamilymentalhealth.com/adhd/adhd-and-divorce/

[2] https://www.psychologytoday.com/blog/the-intelligent-divorce/201304/adhd10-helpful-tips

[3] Robert Emery, Ph.D. The Truth About Children and Divorce, 2006


How Divorce Affects Adolescent Children

November 18, 2014

Getting divorced is difficult. Getting divorced when you have teenagers… Well, it can feel impossible. Luckily, a lot of very smart people have said a lot of incredibly useful things to help you navigate these tricky situations. A must-read is by Carl Pickhardt, a psychologist and writer, entitled “Surviving Your (Child’s) Adolescence.”unhappy teen

He starts by describing the difference between the way a child who is under 9-years-old and a child who is 9 or older reacts to the divorce of their parents. While the younger child will tend to cling and show anxiety, the older child begins manifesting signs of independence and pulling away. Since it is already typical for an adolescent to test their independence, this confluence can be destructive, rather than developmentally beneficial for the child.

Pickhardt runs down the ways in which a divorce can affect the adolescent. They can put off committing to their own relationships, or keep things overly casual, in order to forego the same pain they saw in their parents’ relationship. It can make them uncertain about their own feelings toward a romantic partner, if their new frame of reference becomes, “Well, I thought my parents loved each other, but now I’m not sure.”

To avoid these mires and pitfalls, Pickhardt suggests what he calls “The Ten Articles of Consideration;” a list of ways that parents can interact positively with their adolescent children and assure them of their continued love, devotion, and foster trust. I highly recommend you check it out for yourself, especially if these problems sound all too familiar. As always, Fairfax Divorce Blog will be here to continue giving our own advice and pointing out helpful articles whenever we find them!

Posted by Jane Baber, Mediation Assistant

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


How to Get Started in Divorce Mediation

November 11, 2014

phoneAre you considering mediation for your divorce, but don’t know how to get started? Don’t worry. It’s not a difficult process. At Graine Mediation, we start with an Intake Phone call: (571) 220-1998. We are usually able to help you start feeling better about settling your divorce case with that first call.

Before Graine Mediation takes on a new client, we require Intake Phone Calls with both parties. These initial calls are free. They last approximately 20 minutes each. Clients are encouraged to ask the mediator, Robin Graine, as many questions as they have.

The Intake Calls are confidential, which helps clients relax and be able to discuss difficult issues without fear of anything being repeated to the other party. Not only that, but by having the phone call in their own home or environment, free of charge, clients feel comfortable both in their environment and in the fact that they are not being charged by the minute! Our firm believes in generous Intake Phone Calls because it helps to ensure that our potential clients truly wish to mediate, and understand what mediation is. Also, it is part of our job to assess whether mediation is the best fit for each family’s unique circumstances and, if not, to make a more appropriate referral.

During the Intake Phone Call, I enable clients to:

  •    Tell their story;
  •    Sift through the facts of the case and begin formulating clear issues to be resolved;
  •    Focus in on their needs and, if it helps, the needs of the other party;
  •    Formulate clear ideas about what is best for their children (if they have children);
  •    Gather information and answer important questions;
  •    Discuss tasks outside of mediation that may be necessary in order to settle the case; and
  •    Discuss the strengths and weakness of various settlement options (which include everything from the tax implications to the emotional fall-out possible to children and parents).

This call also helps us at Graine Mediation do our job more efficiently. With an idea of the facts and issues in a case, as both parties see them — legal, financial, emotional – we are able to move forward much more quickly in the settlement process than would otherwise be the case. The parties, too, tend to be more goal-oriented and are in a better position in terms of helpful legal, financial, tax and parenting information.

If you have been considering divorce or custody mediation, but just don’t know where or how to start, give us a call at (571) 220-1998. We can help determine whether mediation is right for your situation, or at least get you pointed in the right direction.

Posted by Robin Graine, JD, Virginia Supreme Court Certified Mediator

This blog and its materials have been prepared by Graine Mediation for informational purposes only and are not intended to be, are not, and should not be regarded as, legal advice.  This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.


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