© Liaise^® Mediated Solutions, LLC 2012

So, you and your ex have finally divided up your property, agreed on parenting time, child support and spousal maintenance and you are ready to get on with your life.  Now comes the hard part!  How do you adjust to your new life while ensuring that your children adjust to theirs with as few bumps in the road as possible?

Keep in mind that the first two years following a divorce will probably be the most challenging for your children.  Decisions that you make now about child-rearing will have a far-reaching, often lifelong, impact on your children.  There are steps that you can take to lessen the stress of these challenges and point your children in a positive direction:

1. Put Your Children First

The most important step is probably the most obvious. Their needs and their feelings will need to be a top priority and they will need to know that they can trust you to take care of both.

2. Keep the Lines of Communication Open

It is very important that you let your children express their concerns but do not add to them.  It is crucial that children do not feel like they are in the middle of any parental conflict.  Do not make disparaging comments about the other parent or ask your child to report back on them.  Co-parenting and shared decision-making are the best models for the psychological health of your children.

3. Create Boundaries

While it is true that all children need boundaries, your children will need them more than ever during this time.  They will need the sense of stability that clearly- defined, fair rules and consistency will bring for their emotional well-being.

4. Be Mindful Of Your Guilt

Do not let yourself be manipulated out of a sense of guilt.  Allowing extra privileges or overspending on children as compensation for the pain caused by divorce will serve to undermine the sense of stability mentioned above.

5. Implement A Clear Visitation Process

In cases where a child does not want to visit the other parent, the first choice would be to have them discuss this issue directly with the other parent.  If the child is unwilling or unable to do so, arrange for them to meet with a neutral third-party such as a clergyperson, child therapist or specialized mediator.

6. Evaluate Therapy

If your children have witnessed violence or abuse in your marriage, they may need ongoing therapy.

7. Give Extra Support To The Youngest Children

Divorce Is hardest on the youngest children. It will be particularly hard if the primary caretaker has to enter the workforce post-divorce.  The impact is second hardest on children who are entering adolescence.  Be especially alert to the needs of children who are at these developmental stages.

8. Do Not “Spouse-ize” Your Children

Resist the temptation to take your children into your confidence about financial, relationship or other adult matters.  This can create anxiety for your children and result in them feeling like they have to take care of you.

9. Do Not Overburden Older Children

Do not put too much responsibility on the older children to take care of the younger children. While some responsibility is good, too much may rob the older children of their own childhood.

10. Do Not Be Afraid To Ask For Help

Reach out to family, friends, and your community for assistance with transportation, childcare, and homework.  This will also help keep some of the burden off of older children.

11. Mediate from the start

There is overwhelming evidence to demonstrate “that mediation produces more satisfaction with the divorce process, more satisfaction with the divorce outcome, a better post-divorce relationship with the spouse, and more of a sense that children’s needs are being met.” (Lori Shaw, “Divorce Mediation Outcome Results”, Conflict Resolution Quarterly, Summer, 2010, Volume 27, No 4, pgs 447-467.)”

Finally, as with so many things in life, your attitude is a key component to how your family will weather divorce.  Keeping a sense of humor and approaching the experience with an open mind well focused on creative possibilities will go far to alleviate stress and bring out the positive aspects of this transition.

Carla Tourin is a mediator and Minnesota-licensed attorney.  Additionally, she serves as a volunteer mediator for the Conflict Resolution Center of Minneapolis and works on divorce and consumer protection cases for the Volunteer Lawyers Network of Minneapolis.  In addition, she works on lobbying efforts on behalf of the Civil Society of Minneapolis, which assists human trafficking victims.

David D. Stein has been an attorney for 20 years and the founder of Liaise^® Divorce Solutions.  He is a trained divorce mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

Carla Tourin, Esq. and David D. Stein, Esq.

© Liaise® Mediated Solutions, LLC 2012

If you are a parent contemplating divorce, you are no doubt aware of the conflicting information out there regarding the impact of divorce on children.  For every study showing the negative impact of divorce on children, there is conflicting data showing the benefits. How can you tell what impact divorce would have on your children and, more importantly, what steps can you take to ensure the best outcome possible for them?

It is widely accepted that for families that are already high-conflict, divorce is often in the best interests of the children.  In households where there is abuse, addiction, and/or chaos, there is usually nowhere to go but up.  In these homes, it is the conflict and not the divorce itself that causes problems for children, including depression, anxiety, low self-esteem, academic problems, and acting out.

But what about the impact of divorce in low-conflict families, which actually make up the majority of households?  In marriages that simply have the “blahs,” children are likely not attuned to any trouble between their parents.  They are not affected by the unhappy marriage itself; they are affected by their parents’ inability to be good parents.  Can divorce have a positive impact on children in these cases?

The answer is that for both high- and low-conflict families, there are options available to facilitate the process and lessen the negative impact on children.  Studies show that a mediated divorce has a far more positive impact on children than a litigated divorce.  In addition to the fact that a mediated divorce is far less expensive than a litigated divorce, a mediated divorce historically results in more positive outcomes for children.

There is overwhelming evidence to demonstrate “that the mediation produces more satisfaction with the divorce process, more satisfaction with the divorce outcome, a better post-divorce relationship with the spouse, and more of a sense that children’s needs are being met.” (Lori Shaw, “Divorce Mediation Outcome Results”, Conflict Resolution Quarterly, Summer, 2010, Volume 27, No 4, pgs 447-467.)”

Of course, an harmonious divorce is always preferable to a bitter divorce, but in any case divorce takes its toll on children.  In situations where the divorce is harmonious, however, the children adjust to their post-divorce lives better and more quickly.

Studies show that the first two years of a divorce are the biggest adjustment period for families. After the shock wears off, however, the divorce can serve as a springboard to healthy, meaningful lives for the children involved.

What are the 6 ways a well-done divorce can have a positive impact on children?

1. Resilience and Flexibility

If the divorce is handled well, the children will learn resilience and flexibility, traits that will serve them well in uncertain times.

2. New Opportunities and People

If the one or both parents enter a new relationship, the resultant blended family can expose children to different dynamics and ways of relating to others in a family setting.

3. Maturity and Independence

Boys and girls gain maturity and independence more rapidly, particularly if they are expected to shoulder more household responsibility.  They also benefit from an earlier exposure to the ups and downs of life.  This often leads to an acceptance that ups and downs are a part of life and contributes to the flexibility and resiliency noted above.

4. More Quality Time

Their parents may spend more quality time with them, not only because the time they have together is more precious, but also because the focus has been taken off parental conflict.

5. Money Skills

Children of divorce may learn to be more responsible with money due to reduced circumstances post-divorce.  These circumstances often make them more aware of and involved in financial and budgetary considerations.

6. Happier Parents = Happier Children

If the marriage is making a parent miserable, they will probably be a better role model post-divorce.  Many parents “come into their own” post-divorce, and go on to lead happier, more productive lives once the burden of living in an unhappy marriage is lifted.  Children who witness this sort of shift often have more positive feelings about the future and their own lives as adults.

In conclusion, divorce is rarely the optimal choice for children, particularly those in low-conflict families.  When managed correctly, however, with the best interests of the children at the forefront, the negative impact of divorce can be turned into a positive outcome for children.  Mediation can play a large part in making sure the positives outweigh the negatives for children of divorce.

Carla Tourin is a mediator and Minnesota-licensed attorney.  Additionally, she serves as a volunteer mediator for the Conflict Resolution Center of Minneapolis and works on divorce and consumer protection cases for the Volunteer Lawyers Network of Minneapolis.  In addition, she works on lobbying efforts on behalf of the Civil Society of Minneapolis, which assists human trafficking victims.

David D. Stein has been an attorney for 20 years and the founder of Liaise® Divorce Solutions.  He is a trained divorce mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

Scott Van Soye, Esq. and David D. Stein, Esq.

© Liaise® Mediated Solutions, LLC 2012

Well, you never thought it would happen, but you’re getting divorced.  It’s a sad, stressful time – psychologists say that divorce is second only to the death of a spouse as a stress-producing life event.  And divorce is generally more difficult for men than women, because men are more likely to suffer shock, isolation, worry over money, and disruption of the parental role. However hard it is, though, it’s a time for men to shift from strictly taking care of the wife and kids to also taking care of themselves.

Protecting your finances will often mesh with your other goals.  Here are three simple tips that will help you maximize your assets both during and after the divorce process:

• Maximize your time with your kids: Of course, you want time with your children because you love and miss them, and want them raised right.  But a divorce lawyer will tell you that the percentage of time you spend with your kids can also have a dramatic impact on your child support obligations.   The less time you spend parenting, the more you’ll end up paying.
  Sharing custody isn’t as hard as it used to be. Courts are no longer allowed to presume that awarding custody to Mom is best. California law supports “frequent and continuing contact” with both parents, and in awarding custody, courts favor the parent “more likely to allow the child frequent and continuing contact with the noncustodial parent.”

Quite apart from the money, children benefit from time with their dads. Children whose fathers have frequent visitation do better in school, have higher IQs, and exhibit fewer emotional and behavioral problems.  So for yourself and your kids, be there as often as possible.

• Keep your emotions in check. The divorce experience is a sad one for many men. Research shows that emotions affect our economic judgment.  People pay more and demand less when they are sad.   A spouse’s display of sadness can make men overly generous. Similarly, a man who feels guilty will increase concessions and decrease demands, even against his self-interest.  He is less likely to evaluate offers rationally. This could be disastrous when it comes time to negotiate support or divide community property. So, men looking for divorce should go for attorneys who are offering divorce advice for men.

To combat the effects of sadness and guilt on their ability to protect themselves financially, men must plan, form a flexible negotiation strategy, and, to the best of their ability, abide by their strategy.  Of course, this tactic must be weighed against the equally important need to be open-minded and accommodating of the future needs of a “Reorganized Family”, as is a trademarked Liaise method. Recalling the strategy can help put them in an analytical, rather than emotional frame of mind. An analytic mind-set will also help them to be receptive to, and mindful of, the needs and positions of their spouse so that the most productive negotiation can occur.   A break during negotiations can also give men a chance to focus on the goal instead of the emotion.  Finally, thinking of something that makes them happy can help rid men of sadness and guilt.

• Mediate from the start. Mediating all aspects of a case from the start can save real money.  In 2008, Bonnie Erbe of U.S. News and World Report estimated that divorce costs ranged from $27,000 to as much $78,000.  Since then, costs have risen sharply.  A 2011 estimate of these costs set them between $53,000 and $188,000. Mediation, in contrast, could cost as little as $3,000 to $7,000. In addition, mediation puts the parties in control of their own destinies, and decreases the severe stress associated with litigation.

By taking these few simple steps – maximizing time with their children, controlling their emotions during negotiation, and making full use of mediation, men experiencing the difficulties of divorce can protect the assets they need to move forward. At the same time, such divorce tips will improve the lives of their children, deal more effectively with painful negotiations, and reduce stress.

Scott Van Soye, Esq., is a full-time mediator and arbitrator working with the Agency for Dispute Resolution, with offices in Irvine, Beverly Hills and nationwide. He is a member of the California Bar, and practiced real estate, civil rights, family law and employment law for over twenty years. He holds an LL.M. in Dispute Resolution from Pepperdine University, where he is an adjunct professor of law and a friend/contributor to Liaise Mediated Solutions, LLC

David D. Stein, Esq., has been an attorney for 20 years and the founder of Liaise^® Divorce Solutions. He is a trained divorce mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

© Liaise® Mediated Solutions, LLC 2012

1. Defining an Expert

In the American system of jurisprudence there are two types of people who can give testimony.

The first type of witness is the one with which most people are familiar. They are known as percipient witnesses. In other words, they are someone who can testify as to their sensory perceptions. What they heard, what they saw, or even what they smelled.

Something like this is the typical testimony received in a court of law:

“Mr. Witness, please tell the court what you saw on that fateful morning last March.”

“I saw the black sedan drive through the red light and hit the plaintiff’s parked car in the left rear panel, it made a terrible noise and the smell of burning canvas just after the fireball was horrendous.”

The second type of witness is known as an expert witness.

First definition of Expert Witness: Barron’s Law dictionary defines expert witness as a witness having “special knowledge of the subject about which he is to testify” that knowledge must generally be such as is not normally possessed by the average person.

Once an expert’s qualifications are sufficiently established for the court as to that persons education, training or experience that person can then opine as to analogous hypothetical situations put to them by the trial attorneys.

Typical Expert Witness testimony might go something like this:

“Mr. Expert Witness your training and qualifications have now been established to the satisfaction of this court, you have had an opportunity to review the documents and records in this case – at this time, if you would be so kind, please tell us in your expert opinion what the value of the art collection would have been had it not been destroyed in the fire caused by the defendant.”

“Thank you Mr. Lawyer, having reviewed the records of the art collection and being intimately familiar with the market for such artifacts, it is my expert opinion that had the collection not been destroyed it could be sold at auction for $117,000.”

Second definition of Expert Witness: Expert: An “X” is an unknown quantity; a “spurt” is a drip under pressure. Therefore an “Expert” is some unknown drip under pressure”.

This definition I learned from H. H. Stein, my father.  It is the one that I used to use when I was preparing a client for litigation where expert testimony would be engaged.

This definition may sound cynical but experienced trial family lawyers know that if your “hired gun” expert isn’t giving you the testimony that you’re looking for, you get another expert.

Trial judges are also keenly aware that when they receive expert testimony the person giving the testimony has been paid a lot of money and anything they hear must be sifted through the “profit motive” filter.

2. The Cost of Using Experts

Make no mistake, expert testimony is expensive. Many times the expert is being paid $400 to $500 an hour and often they will have an “actual testimony” fee that is higher. To establish a foundation for their testimony they will, no doubt, need to spend many hours in research, reviewing files, interviewing parties and cogitating at length on the nuanced minutiae of any particular issue.  It is not unusual to spend many tens of thousands of dollars on experts in litigation.

3. When to Use Experts in Family Law

Many Family law disputes are, at their root, about property and children.

Many times real estate, pension plans, art, antiques and other collectibles must be assigned a dollar value so that they can be assigned to one party or the other and the proper value of the set-off is determined.

In some unfortunate situations parents are unable to come to terms on the best custody or visitation situation for their minor children and an “expert” is engaged to “opine” as to what the best circumstances for the children would be. Liaise as family law mediators help to overcome such issues.

Of course, the situation is complicated by the fact that both sides in a lawsuit are entitled to engage experts. A court is often presented with the scenario of “battling experts”. Two equally qualified opinions that, more often than not, diverge greatly.

4. How To Lower the Costs of Experts

Fortunately, people who are seeking to end their marriage through mediation and not litigation have a simple solution to the problem of expensive expert testimony.

Many times there are assets that must be valued in even the friendliest of Marital Dissolution.

The parties agree that they do not wish to sell the real estate, wine collection, model railroad or other asset. Sometimes there is a “Defined Benefit” pension plan that needs to have its “present value” ascertained. A defined-benefit pension plan is one where the covered employee will receive a certain percentage of their earnings upon retirement. Such a plan must have its present value determined by a forensic accountant if it is going to be assigned inequally between the parties.

The way to avoid “battling experts” in the mediation situation is for a single engaged expert to perform their service for the mediation company, not the parties. By this simple expedient the expert is in no way influenced to favor either party in their opinion. They know that their current employment and their future employment are dependent upon their giving the fairest opinion possible as to the value of assets.

The other type of expert opinion, regarding outside opinions on the best resolution of child custody and visitation issues occurs very rarely in mediation. The people who choose mediation have adopted the mindset that they are in the best position to negotiate the optimum resolution for their children. Indeed, loving parents of good faith are better situated than any so-called family law mediators to determine what the best arrangement for their family is.

This is not to say that people involved in mediation do not have conflict regarding the management of child visitation issues. Of course they do, but all families have conflict. Sometimes Liaise will engage a therapist or counselor, acceptable to both sides, to meet with the parties and/or attend mediation sessions to help the couple get through their issues and come to terms. Through mediation both sides are able to hear and, hopefully, understand the other side’s position and together continue to act as good parents.

David D. Stein has been an attorney for 20 years and the founder of Liaise® Divorce Solutions.  He is a trained divorce mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

© Liaise® Mediated Solutions, LLC 2012

Just the other day I was talking to a prospective client on the phone and she said the following words, “I still love him, I just don’t want to be married to him any more”.

There it is again. I hear those words, or variations of those words, over and over.

In California, the almost exclusive “grounds for divorce” are that irreconcilable differences have caused the irremediable breakdown of the marriage. It’s important to think about those words - irreconcilable differences. They mean just what they say. It’s not good, or bad, it’s just differences. That’s what happens when people grow and change. Over time differences arise between them. As to whether or not those differences rise to the level of “irreconcilable” is up to the individuals involved.

It’s not easy being in a committed relationship. People are entitled to their differences. It is unfair for one party to try and impose their will upon the other party. We are all free to be the person we are and to grow into the person we choose to be, without impediment.

Divorce does not have to mean that all that has been shared over your years together is forgotten, or without great meaning. With many divorcing couples there is still an abiding affection between them. They want their former spouse to have a wonderful life and genuinely wish them happiness. They simply no longer wish to be married. That’s just the way things are sometimes in some relationships. A partner’s changing should be accepted and not the object of rancor, derision or scorn.

Remarkably, or maybe not so remarkably, many couples come to a decision to divorce together. They both feel that their partner is somebody they care a great deal for, but they perceive their best chance of future happiness as living separately.

For couples such as this, the divorce mediation process is extremely streamlined and comfortable. Where some couples might be negotiating aggressively for a “better deal” for themselves couples who are in touch with their good feelings for one another are more likely to be unconcerned with details and working purposefully towards making certain that their soon-to-be former partner has a fair outcome.

The divorce mediation process is extremely effective. It works 98% of the time for couples, irrespective of the amount of conflict or the hotness with which issues are contested. However, in those cases where the divorcing couple is still in touch with their affection for one another the process is really quite painless and very expeditious. Such a mediation is the orderly organization of the marital estate, a fair division of that estate and a very friendly negotiation on any issues of support.

What many people find to be surprising is that not only is a large percentage of divorce mediation quite friendly, but many mediations that start rather quarrelsome in a short period of time end up being a very cooperative and painless experience. From my observations I would submit that the reason for this phenomenon is that almost all couples, once they get past the awakening to the fact that irreconcilable differences have arisen in their marriage, still have fundamental good feelings for one another and wish to part on the best terms possible.

David D. Stein has been an attorney for 20 years and the founder of Liaise^® Divorce Solutions. He is a trained divorce mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

© Liaise® Mediated Solutions, LLC 2012

One of the greatest challenges to the mediators here at Liaise Divorce Solutions is educating the public as to what exactly mediation is and dispelling myths as to what it is not.

In a nutshell, mediation is at root a “supported conversation”. The parties that have a disagreement in need of management sit down in a neutral location with a professional communications expert, also known as a “mediator”, and systematically work through the issues between them. In a divorce situation the mediator is known as a “divorce mediator”. The goal of the mediation is to arrive at a contract that sets forth all the agreed-upon terms and conditions the parties have negotiated. This agreement becomes the basis for a “stipulated” judgment.It is known as a stipulated judgment because the parties are telling the judge this is what we have pre-agreed you should Order.

Many people confuse “mediation” with “arbitration”. Arbitration is essentially the same as going in front of a judge. It is an “adversarial” proceeding. The difference is that an arbitrator is a private party that the disputants have agreed will serve as a judge. An arbitrator, like a judge, hears testimony, reviews documents and applies “rules of evidence” to determine what is, and is not, admissible and/or relevant to the matter. The rules of evidence that an arbitrator will apply are very similar to the rules of evidence in a court of law. Evidence must be “relevant”. That is it must apply to the situation at hand. It must be “competent”. It must be a legally admissible and tend to prove that which it is offered to prove. It must not be “hearsay”. Hearsay is an out of court statement offered for its truth. There are entire treatises written on the “rules of evidence” and is not possible to convey more than a basic idea of what the concept stands for in this article. The arbitrator will then make a decision or judgment as to which party has presented the better case and rule accordingly.

Sometimes, very rarely, people who have participated in divorce mediation and have been unable to come to the exact terms of their proposed settlement will request what is known as mediation/arbitration. In these rare instances the parties can submit the unfinished part of their agreement to a pre-agreed-upon divorce lawyer, knowledgeable in the law of their situation, and request that she make a decision in their case.

In a family law matter, both arbitration and litigation are extremely unsatisfactory experiences for the parties.

Even highly experienced San Francisco divorce attorneys have had the experience where their proffered evidence went in smoothly and the experience where they were very frustrated in their attempts to present evidence to a judge or arbitrator. Why should you put yourself in a position where your attempt to tell your side of the story might be “rule bound”? The answer to this question is, you should not.

In mediation, both sides are free to tell their story. There is no “time limit” and there is no restriction on what statements or documents would be “admissible”. Indeed, a mediator, unlike a judge or arbitrator, makes no decisions or judgments. The role of the mediator is to assist the parties in expressing their side of the story to the other party.

There is another very important factor to be considered when trying to decide to divorce using mediation, arbitration or litigation. That is a financial element. The average cost of a litigated divorce in California is about $78,000. Arbitration, since you will also be paying an Arbitrator, is even more expensive. The average cost of a Liaise Divorce Solutions divorce is around $4,000. Also, people using divorce mediation as opposed to an adversarial proceeding like arbitration report a much higher satisfaction rate with the process.

You should make an informed decision and thoroughly investigate the option of divorce mediators if you are thinking about getting divorced.

David D. Stein, has been an attorney for 20 years and the founder of Liaise^® Divorce Solutions. He is a trained divorce mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

© Liaise® Mediated Solutions, LLC 2012

A large portion of this company’s California mediation practice focuses on assisting couples seeking to end their marriage through mediation as opposed to litigation. It is amazing to me how often couples seeking our guidance come in with well ingrained false notions regarding spousal support as it operates under California law. With the amount of misinformation on the internet, I find myself constantly reeducating couples on the truths of spousal support. The three misconceptions below come up so often I felt compelled to address them. Read below to see if you are a victim of false information.

One of 3 general misconceptions is often at the root of having to reeducate a party from what they have gleaned off of the Internet or from poorly informed friends.

Myth # 1 – Alimony Is an Absolute Right.

Spousal support is not mandatory in dissolution or legal separation proceedings. As a matter fact, quite the contrary is true. Courts have broad discretion to deny spousal support altogether ( ¹).

Before a judge orders or denies spousal support there must first be a careful consideration of the legal factors ( ²). These factors shed light on how the earning capacity of each party is, or is not, enough to maintain the lifestyle established during the marriage taking into account all of the following 15 factors:

(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.

(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

(3) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

(4) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.

(5) The needs of each party based on the standard of living established during the marriage.

(6) The obligations and assets, including the separate property, of each party.

(7) The duration of the marriage.

(8) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

(9) The age and health of the parties.

(10) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.

(11) The immediate and specific tax consequences to each party.

(12) The balance of the hardships to each party.

(13) The goal that the supported party shall be self-supporting within a reasonable period of time.  Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage.  However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.

(14) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.

(15) Any other factors the court determines are just and equitable.

Clearly doing this evaluation is a daunting task. Even if you do not go through each one, take a special look at the crucial “15th” factor; “Any Other Factors the Court Determines Are Just and Equitable“. Many Family Law practitioners refer to this factor as the “Wild Card”.

In California the issue of determining spousal support becomes even more complicated. This is because of the fact that the single largest line-item in any family budget is, generally, housing. When you split up a single household and attempt to support two separate households there is rarely enough money to go around guaranteeing both parties the same standards they enjoyed during marriage.

When you are contemplating how all of the above factors impact upon your individual situation also think about this.  On the Judgment( ³) form which is used in every single dissolution action in California the following words appear:

“NOTICE: It is the goal of this state that each party shall make reasonable good faith efforts to become self-supporting as provided for in section 4320 of the family code. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating support.”

So there you have it. It is the express public policy of the state of California that everybody supports themselves.

Where does that leave two people thinking about divorcing and trying to plan for their separate futures?

On the one hand, by no means is spousal support impossible. It happens and is so ordered, every day. On the other hand, those seeking support are walking into the headwind of the stated public policy of California. The answer to this question, like so many questions in legal proceedings, is that it is better to negotiate an agreement on the issue of spousal support rather than leave it to the recklessly spinning “Wheel of Misfortune” ( ⁴) that is litigation.

Looking for a Divorce (family issues) dispute Mediator? Call or Contact for Free Mediation Consultation in San Francisco, the Bay Area or throughout California by on-line video conference!

Myth # 2 – After 10 Years Alimony Is “Guaranteed for Life”.

Being married for more than 10 years does not cause one party to become the “indentured servant” of the other party. We learned from Myth #1 that spousal support, if any, the amount of spousal support, and the duration of that spousal support is determined by a careful balancing and weighing of legal factors( ⁵).

The confusion on this point might be traceable to Family Code §4336. This section makes it clear that in a marriage of “long duration” the court retains jurisdiction indefinitely on the issue of spousal support. This section clarifies that there is a presumption that a marriage of 10 years or more is a marriage of long duration. This means the door to the court remains open, but there is no guarantee that support will be ordered.

The same factors that must be weighed and balanced when the divorce is fresh must also be evaluated at any step down the road when a party is seeking spousal support. If the supported party has not made reasonable good faith efforts to become self-supporting they may find themselves denied in any future application for continuing support.

Myth # 3 – The Amount of Alimony Is Determined by a Computer Program.

I can’t tell you how many times we have couples come to our offices and one or the other will say, “We already know what the spousal support amount is, we ran the number”. To which we must reply no, no, no. If only it were that simple.

The law is the law. Family Code section 4320 must be followed in ascertaining the proper amount of spousal support.

This confusion comes from the fact that the computer programs that allow a court to calculate proper child support also have a function to determine proper temporary spousal support.

The typical situation is as follows:

1.  There’s a marriage and the breadwinner decides that he or she has had enough and moves out.
2.  The supported spouse files for dissolution or legal separation.
3.  Courts move very slowly and there won’t be a trial on this matter for 18 to 24 months( ⁶). What’s a party to do?

Sadly, it is true that there are a lot of lazy lawyers and lazy judges who rely on this temporary support calculation to calculate long-term support. This is an error. It is settled law in California that temporary spousal support computer programs cannot be used to determine “permanent” spousal support. It is also very clear in the law that the number produced by a temporary spousal support calculator cannot even be used as a “jumping off point” to begin negotiations of proper spousal support. The required weighing of legal factors cannot be delegated to a mere computer program ( ⁹).

So where does this leave people looking to end their marriage?

The fact of the matter is it leaves them in the very best position to determine what appropriate spousal support is in their unique situation. It also makes it clear that it is ill-advised to try and arrive at that number in anything other than a thoughtful, negotiated method. The parties who’ve been husband and wife must sit down together and do their best to plan how they will manage to live separately. Attempting to do it any other way is wasteful, expensive and very stressful. It is smart to attempt this task in the form of a “supported conversation” with a professional mediator, well-trained in family law and finance who can assist the parties in arriving at the best resolution possible.

David D. Stein has been an attorney for 20 years and the founder of Liaise® Divorce Solutions.  He is a trained mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

© Liaise® Mediated Solutions, LLC 2012

At a recent presentation of San Francisco Divorce attorneys designed to provide information to the public, an interesting comment was raised by an attendee. The conversation had been focused on the benefits of divorce mediation and how it can lead to more expeditious and better balanced resolutions to marital problems. The attendee raised her hand and stated words to the effect that she and her husband could not use mediation because, “the only issue between them was child support”.

I pointed out to her that in a very large percentage of the cases that we mediate at our company child support is often an issue. She responded that because child support is a calculation that considers the income of the parties and the “timeshare” of the children there was nothing to negotiate or mediate.

Although, in a sense, what she says is true, it is also true that the nuanced vagaries of day-to-day life and child care needs give rise to many areas of disagreement that should be mediated, not litigated.

It is a fact that the child support guidelines contained in such software programs as DissoMaster will generate a child support number based upon income and custodial time; it is also true that in many families these broad-stroke calculations do not go far enough to ascertain and address true family needs.

In many cases one party will be more involved in clothes shopping, school supplies shopping, enrichment programs and the like. It is only fair that the party who is paying for such costs and activities have the appropriate adjustments made to the child support received or their obligation to pay child support.

Similarly, in many families, where there are two wage earners, it is appropriate that neither party pay any child support to the other, but instead both contribute regularly to a program designed to offset costs of future education expenses.

The point of this article is that it is always best for a family to decide together what an appropriate amount of child support is. To take the round peg that is your family and try to jam it into the square hole that is the broadly drafted “child support guidelines” is oftentimes a mistake. Every family is unique. It is entirely appropriate that each family be the architects of their own plan for the future.

Of course, any stipulation for child support between parents must pass judicial scrutiny. However, it is the experience of this firm that whenever a family chooses to deviate from California’s prescribed guidelines and is credibly able to show cause why it is in the family best interest to do so, the court will allow their agreement.

In short, there is no area of family conflict that is not amenable to mediation. No couple should ever be in a position where they must defer to the authority of a judge to determine what is in the best interests of their child.

David D. Stein has been an attorney for over 20 years and is the founder of Liaise® Divorce Solutions . He is a lawyer, expert divorce mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

Looking for a Divorce (family issues) dispute Mediator? Call or Contact for Free Mediation Consultation in San Francisco, the Bay Area or throughout California by on-line video conference!

© Liaise® Mediated Solutions, LLC 2012

At a recent informal gathering of San Francisco divorce attorneys I was asked to opine on child rearing, custody and visitation issues. The following is an encapsulation of that dissertation.

There are, in my opinion, 5 little words that allow the human race to continue to propagate. When you are single, or just married and thinking about children, and look around a crowded restaurant in disbelief at the messy, disorderly, shockingly rude children terrorizing the patrons, you think those 5 words to yourself, “My kids will be different”.

Yes, of course.

When you do have children you soon must face the fact that the nature of the beast is such that kids are just kids and that your kids are, if you are lucky, not much different, from the rest of the pack.

There is no more gratifying and simultaneously maddening job than that of parent. You work real hard to give them what they need and, perhaps, a bit more. Are you ever properly thanked for your endeavors? Not likely. But, sometimes, if the moon and stars are aligned just right your offspring may hug you, or kiss you, and say, “I love you”. Your heart melts, tears well in your eyes and for a brief moment all the expense and sacrifice seems worthwhile. Then without fanfare the moment quickly passes and you go back to your delegated roles of cook, maid and walking ATM.

Such is modern parenting in this waking dream we call life.

Many times when you are raising your children you may wish that the little brats had come with a manual. It would be great to have a guide from the manufacturer to consult when you are trying to make difficult child raising decisions. But of course, every child and every family is unique. There is no guide that can tell you with certainty what you should do in any particular situation.

This is not to say that there are no guidelines to which the enlightened parent should strive to abide. My training is in inter-personal communications and law. So I am in no way academically qualified to opine on this subject, but I’ve seen a lot and mediated quite a few “child custody” disputes and it seems to me that there should be at least 2 oaths that every parent can swear and be a better parent for doing so.

First, be like a doctor, Do No Harm. Growing up is hard. Do your best not to make it any harder for your kids. Eschew violence. It solves nothing and only teaches the false and dangerous lesson that “might makes right”. Remember that shouting and verbal abuse is a form of violence and is equally damaging to young people. Don’t do it. Just because you may have been raised with the occasional spanking or slap, and that is how you think parenting is done, rise above it. Your kids are precious and deserve your best efforts to be rational and creatively communicative.

Second, Lead By Example. Try to be the best parent, and person, that you can be. Do your best at work, at home and at every task to which you turn your hand. Isn’t that exactly what you would want your child to do? You too must continually strive to achieve your full potential. I know, I know, it’s hard to always be that person. I live in a house that is 99% glass, so you know I’m not throwing any stones. This oath, to my mind, doesn’t mean that you can’t, for instance, drink. It means you can’t be a drunk, or let alcohol interfere with your life. Likewise it doesn’t mean that you have to be the richest, or the most decorated, or the very highest achiever in any given field, it means that you endeavor resolutely to do your best and share the satisfying experience with your children of knowing that you gave your all. Teach that happiness is a byproduct of doing good work.

Whenever Liaise Divorce Solutions is involved in mediating a child custody dispute we always try to get parties to discuss their philosophy and style of child rearing. It is startling to hear that so many couples involved in these disputes actually share the same parenting values and style. Often it is revealed that, at root, the so-called child custody dispute is merely a façade behind which hides a “parent v. parent” punishment agenda. In other words, it all boils down to words to the effect that “it isn’t that my ex is such a bad parent, I just think it would be best for the children to spend more time with me”.

Yes, of course.

In child custody/visitation cases where there is no violence, substance abuse or other compelling reason to preclude visitation, the default position should be open, easy and free access to each parent. This is the situation that is best for your children and your children deserve no less.

This notion is fundamental to the Liaise concept of Marital Reorganization®. Like it or not, now and forever, one of you is Mom and one of you is Dad and that is never going to change. Soon you may no longer be husband and wife, but you will always be a family going into the future.

During mediation the Liaise mediator will take out her crystal ball and tell divorcing couples that there will be a Christmas this year, some day there will be a graduation, perhaps a wedding and maybe Grandchildren. The couple has a clear choice – they can greet these blessed events as well adjusted participants in a Marital Reorganization® – or they can be the bitter relics of ruinous divorce litigation. A simple choice. Make it as easy as you can for your children. Do no harm and try to lead by example.

David D. Stein, has been an attorney for 20 years and the founder of Liaise^® Divorce Solutions. He is a trained divorce mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.