DROP THE DRAMA. Do not discuss the past, unless it is pertinent and directly relates to a present issue. As the late great Washington Redskins football coach George Allen said, “the future is now.” This may be easier said than done, but you cannot change the past, you can only move forward. Sometimes this will require that you get help from a therapist to deal with anger, grief and other unresolved emotions. These emotions will get in the way of a negotiated settlement with your spouse. If both parties are experiencing emotional turmoil, their mediator should suggest hiring a third-party neutral therapist to help them work through any emotional issues that are standing in the way of resolving their divorce and moving forward with their lives.
Author Archive: Philip A. Wasserman
A recent op-ed piece in the New York Times confirms the value of divorce mediation for families with children. Stephanie Coontz, a professor of history at Evergreen State College in Olympia, Washington, wrote about the value of mediated divorce. Professor Coontz cited a 12 year study of divorcing couples randomly assigned to either mediation or litigation. The study was conducted by Psychologist Robert Emery at the University of Virginia. Dr. Emery and his colleagues found “that as little as five to six hours of mediation had powerful and long-term effects in reducing the kinds of parental conflict that produced the worst outcomes for children. Parents who took part in mediation settle their disputes in half the time of parents who use litigation; they were also much more likely to consult with each other after the divorce about children’s discipline, moral training, school performance and vacation plans.” This study is yet another reason why divorcing parents should choose mediation over litigation whenever possible.
Cases where one party is self-employed can present a special challenge in divorce mediation. This is because a power imbalance often results due to the self-employed party’s knowledge of the small business that they own and operate. The business is community property because it was started during the marriage, but one spouse may be completely unfamiliar with the business because they were not involved in it during the marriage. This so-called “out-spouse” may have little or no information about the business other than what the so-called “in-spouse” tells them when it comes time to file state and federal tax returns. Accordingly, the “out-spouse” will likely distrust any claims by the “in-spouse” that the business is suddenly suffering, even in the midst of a real economic recession.
A cost-effective and practical solution to overcoming this problem is for the parties to hire one neutral CPA/forensic accountant to work on the financial issues and prepare a business valuation. Obviously, this requires the “in-spouse” to cooperate fully and provide all documents requested by the CPA/forensic accountant. The CPA/forensic accountant can work with both parties and their mediator to come up with financial plans and division of property based on the parties’ realistic financial needs. The hiring of the CPA/forensic accountant can be without prejudice to either party so neither party is bound to accept the business valuation. Because the joint CPA/forensic is a neutral he/she can meet with each party individually to explain the business valuation report. Each party is also free to hire their own CPA/forensic to review the work of the neutral CPA/forensic. This is still less expensive than both parties hiring thier own CPA/forensic.
This approach is especially effective in cases where there is no money to finance litigation. Once upon a time, parties would use the equity in their homes to hire experts such as CPA/forensic accountants and conduct extensive discovery in an effort to determine the value of a small family business. Today, with little or no equity in their homes, parties have no “bank” upon which to draw these funds. However, even where equity or other funds may exist to finance litigation, parties need to ask themselves whether spending all that money will ultimately make sense.
In 1970 only 4% of husbands had wives who earned more than they did. In 2007, that share rose to 22%. These figures come from a new Pew Research Center study, as reported in the Los Angeles Times. I’ll bet that the percentage of wives who out earn their husbands is even higher today. As more women out earn their husbands, this is having an impact on spousal support, what used to be called alimony here in California. Traditionally, wives have been the recipients of spousal support in divorce.
However, it is both sexist and just plain wrong to assume that only women can receive spousal support and that women never pay spousal support to men. The California Family Code is gender neutral and family law courts can and routinely do order wives and ex-wives to pay spousal support to their husbands or ex-husbands.
Remember, that unless otherwise agreed, spousal support payments are tax deductible to the payor and are taxable to the payee. However, to obtain the tax deduction, there must be either a court order, judgment or written agreement requiring one party to pay spousal support to the other.
Here in California, there is a presumption that in a short term marriage, which is defined as a marriage of less than 10 years, spousal support will last no more than one-half the length of the marriage. However, that is presumption and can be rebutted. Importantly, a party receiving spousal support should always keep in mind that it is the public policy of the State of California that they become self-supporting within a reasonable period of time, and the failure to do so may be one of the factors a family court considers in reducing or terminating spousal support.
I recently attended a conference where I listened to adult children of divorce. Here is some of their wise advice:
“Don’t let or allow your children to lose their childhood in your divorce.”
“You don’t have to have 50/50 custody to be a 50/50 parent. Quantity of time is less important than the relationship you build with your child.”
“Don’t abdicate responsbility for your bad behavior to your lawyers.”
The following is a true story. At least those who claim they saw and heard it happen swear it is true.
Once upon a time, a Los Angeles Superior Court family law judge was hearing a case where there was no name on the child’s birth certificate. Mom and dad each had attorneys and they both asked the judge to assign the child “their” requested name. The judge happened to be retiring two days later. He warned the parties to settle or he “would” pick a name. There was no agreement, and after a break the judge took the bench and he entered an order naming the baby. However, the judge did not select either of the requested names. Instead, the judge named the baby after himself! It was then suspected that the parties went into the hallway and settled their fight.
If you are divorcing, please consider these simple digital safeguards to protect your privacy. First: Stop posting on social networking sites. Second: Get a new e-mail address. Third: Have your computer swept by a professional for any “snooping software” because your spouse/soon to be ex may be monitoring your every move on your computer and reading all of your e-mails, etc. This may sound a bit paranoid, but you would be surprised what can be taken out of context.
Perhaps you have heard of family law mediation but you are not sure what it is or how it works. The following is a brief description of the mediation process.
Mediation involves two parties sitting down with a neutral, experienced family law attorney, who is also trained mediator. Not all family law attorneys have mediation training, so it is important to find one who has both mediation training and experience.
Unlike litigation in court, mediation is a private and confidential process. The confidentiality component of mediation prevents the parties from testifying in court about what happened in mediation and/or from calling the mediator as a witness in any court proceeding. This makes mediation a safe place for parties to freely discuss all of their issues, without fear that what they say will be used against them in court.
The parties will sit down with their mediator and work to divide up their community property assets and debts and confirm separate property assets. If the parties have minor children, the mediator will help them work out a timeshare plan for themselves and their children. The parties will also work with the mediator to determine child support and spousal support (alimony), if any. This does not have to be a lengthy process, but like Rome, a mediation agreement to end a marriage is not built in one day.
As a first step, both parties will prepare the required asset, debt and financial disclosure documents. The parties will list all of their property, debts, income and investment opportunities. Failure to do so can result in severe penalties. The mediator can assist the parties in this requirement. This is far less expensive then having attorneys conduct formal discovery, such as depositions, interrogatories and demands for production of documents, since parties in mediation will voluntarily provide each other all documents needed for a full and fair disclosure of their property, debts, income and investment opportunities.
However, the mediator does not represent either party and the parties are free to consult with their own attorneys throughout the mediation process. Even where parties do not consult with their own attorneys throughout the mediation process, the mediator should encourage both parties to have their final Agreement/Judgment of Dissolution of Marriage reviewed by a consulting attorney before it is signed.
What happened if parties in mediation disagree about custody of the children? Instead of litigating in court, they can hire a neutral third party mental health expert—someone with experience in child custody issues—to assist them in resolving a custody dispute. Parties can also retain a neutral third party expert to help them value a business or personal property, such as antiques, art, jewelry and the like.
Because both parties usually split the cost of mediation, they both have a financial incentive to make the mediation process work. Mediation has been shown to be at least two-thirds less expensive than litigation. Parties who mediate never have to take time off from work to go to court, attend a deposition or work on answering volumes of discovery such as interrogatories. Unlike the rigid hours of court, mediation hours are flexible and the environment is non-threatening. You can dress casually and have coffee, water, juice or soft drink with you in mediation. If your cell phone goes off in mediation, you can answer it. If your cell phone goes off in the courtroom, the bailiff may take it away from you.
Sometimes parties in mediation will want to talk to the mediator privately. This is called a “caucus.” Anything said by a party in a “caucus” is confidential, unless that party permits the mediator to disclose the information to the other party. Sometimes a party needs to express feelings to a mediator that they currently are unable to express to the other party. Often a mediator can help them frame their feelings or more narrowly focus an issue, which can then more easily be presented to the other party.
If you and your spouse are serious about resolving your divorce issues, then mediation is the best path to take. You and your spouse will conserve financial resources, which is no small thing. Your divorce can be concluded quickly and efficiently because you will avoid the lengthy process of litigation. If your are still not convinced, ask anyone whose been through the family law litigation process.
Tax time is fast approaching. Divorced couples want to know who gets to claim their child or children as a dependent(s) on their tax returns. Unless there is a Court order stating otherwise, it’s the primary custodial parent who gets to claim a child as a dependent. The primary custodial parent is defined as the parent with whom the child spends the most time during the year. However, the custodial parent may allow the noncustodial parent to claim the dependency exception instead by signing IRS Form 8332. If both parents claim the child or children as dependent(s), the IRS will likely audit the tax returns to see who qualifies for the dependency exemption(s). If your ex-spouse wrongly took the dependency exemption and it resulted in an IRS audit that cost you money, you may be able to obtain reimbursement in the family court. If you allow your ex-spouse to take the dependency exemption, and they are also under a Court order to pay you child support, make sure the order says your ex-spouse may only take the dependency exemption if they are current on their child support and there are no arrears owing at the time of tax filing.
There is nothing wrong about choosing to mediate your divorce because it costs less. In fact, that is a very sensible plan in tough economic times. Mediation generally costs two thirds less than courthouse litigation. In my experience, the number of mediation sessions usually range from five to eight, if each session is one hour in length. Here are just a few of the financial and emotional advantages to mediation:
- You don’t pay for travel time. Your attorney will likely bill you for some or all of his/her travel time to and from the courthouse.
- You don’t pay for waiting. Your attorney will likely bill you for the time waiting at the courthouse to have your case called and heard by the judge.
- You save on gasoline because you are not driving to a distant courthouse and you save on parking because it will either be free or your mediator should validate your parking.
- You control the date and time of your mediation sessions. You are not bound by the courthouse schedule. This is a very big advantage because you can often avoid taking time off from work and thereby not lose income or hurt your career.
- You can pretty much wear what you want. Most attorney will tell their clients to dress at least business casual when going to court and never to wear jeans. In mediation, you can wear shorts and flip flops. Nice in the Summer.
- There is no stress. Seriously. You are not going to be called as a witness. You are not going to be intimidated by a courthouse full of attorneys or the judge who sits on the bench wearing a black robe, because none of that is present in mediation.
- You can bring a drink (non alcoholic of course) and/or a snack to mediation. You cannot eat or drink in the courtroom.
- You can leave your cell phone on in mediation. Judges can and will confiscate a cell phone that rings in their courtroom.
The list of advantages to mediation can go on and on, but by now you get the point.