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Divorce and Children

The Role of Minor’s Counsel in Litigation and in Collaborative Divorce

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In high conflict litigated cases, a Judge will often appoint Minor’s Counsel in order to assist them in determining orders that are in the best interests of the child or children of the marriage. Minor’s Counsel is an attorney who represents the children. They are not a therapist or a custody evaluator, however they will gather evidence to present arguments to the Court as to what orders are best for their client or clients [the children]. Minor’s counsel is able to access the confidential records for the child such as medical records, educational records or any records from therapists that have been treating the child.

When I have been in the role of Minor’s Counsel, I try to meet with the child in a neutral setting such as a park or a setting that will be comfortable for them. If I know that they like animals, I may bring one of my dogs with me to the first meeting. My goal in the first meeting is to provide the child with a safe space so that they can talk to me. In most litigated cases, the child has been exposed to the conflict of the parents for a long time. They may be coached by one or both parents or fearful that what they say to me will be shared with the parents. I also schedule meetings with each of the parents individually and each of the parents with the child.

Often the parents are so engaged in their negative feelings towards the other parent that they lack insight as to the damage that the conflict is causing to their children. While I am meeting with the family, I am also gathering evidence from outside sources which can help me understand what is in the best interests of that child. If the child has a therapist, then I will speak with them. If one of the parents has been taking the child to therapy without the involvement of the other parent, the evidence obtained may be weighted less. If the parents do not have the child in therapy, I will often recommend that a therapist be put into place for the child so that they have ongoing care and a safe space that they can speak about the children.

Prior to a return hearing with the Court, I will discuss my recommendations with both parents together and the attorneys if they are represented. Generally, parties that are in litigation are so entrenched in their own positions and what they want or what they think is right that they are unable to see the impact that their hostility has on the children. While I do not share all that my client has told me, I will ask permission to share certain statements. It often surprises the parents to learn that their child loves both parents and wants to have time with both of them. If there are issues of addiction or abuse, then we are able to discuss how to maintain that relationship in a manner that is safe for the child. My goal in sharing my position with the parents prior to the hearing is to see if there is a way that we can come up with options and work out a parenting plan together that will be in the best interests of the children. Unfortunately, if we are not able to do this then I will present my case to the Court and the Judge will make orders based on evidence that is presented by each of the parents as well as my evidence that is presented. In litigated cases, my role may continue for several years as most parents are not happy with orders that are made by a Court.

In a Collaborative Case, the parties who choose to participate in this process are able to use minor’s counsel before significant damage has been done to the children. Minor’s counsel may be used in a collaborative case where the parents need additional assistance in communicating with each other or where there has been a history of domestic violence or substance abuse or where there are older children in their teenage years who want to have a voice in what their life will look like after the Divorce. In Collaborative cases, there is often a parent child specialist involved as well. My role in a Collaborative case is to be part of the entire team and to represent the interests of the children while continuing to work with the entire team to guide the family through the process without causing damage to the children. In a collaborative case, my role is to gather information to be shared with the team as opposed to a litigated case where I would be gathering evidence to be presented to the Court.

I conduct the children’s meetings in the same manner as I would in a litigated case, meeting on neutral ground and establishing rapport, I will also meet with the children and each of the parents alone. However, as we are in a collaborative process, I will meet with the parents and children together and just the parents together. I coordinate with the parent child specialist as they are going to be working with the parents on communication and assisting them in getting through the Divorce without damage to the children.

In team meetings, I am able to present options to be considered by the team as a whole and those options can be discussed with the parents, the coaches, attorneys and parent child specialist. The parent child specialist is also able to weigh in. In collaborative cases we are able to structure a parenting plan that works for the children and for the family and will enable them to avoid litigating issues in the future. My role as minor’s counsel ends at the time that the Collaborative case is concluded as parents who work together on a parenting plan are generally happy with that parenting plan and do not continue to litigate the issues.

Minor’s counsel can be a vital role in both litigated cases or collaborative cases where the children need to have a voice. Although the process varies, the role of Minor’s Counsel remains the same, to provide information about what is in the best interests of the children and to assist the children in having a voice in their parents Divorce.

13 Tips for Talking with Your Children About Your Separation and Divorce

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by Carol R. Hughes, Ph.D., LMFT
www.DivorcePeacemaking.com

The following tips will help you prepare to talk with your children about your separation and divorce. You care about doing the best you can for your children because you are reading this article. Give yourself permission not to be perfect. No one is. This is a stressful time for all of you. Remember to keep taking slow, deep breaths — you and your children will get through this difficult time.

  1. Agree on a time when you both can be present to talk with your children together. Siblings need the support they can provide each other. Divorce is a major life crisis for all family members. Treat it as such. Ideally, it is best to share the news with your children when they have adequate time to absorb what you will be telling them, for example, when they do not have to go back to school in a day or two after hearing the news.
  2. Plan your presentation to your children in advance. Make some notes about what you plan to say and review them to be familiar with what you intend to say. Anticipate what they may say to you. You can have the notes in front of you if you wish and say, “We have made some notes because what we are going to be talking about is very important for all of us, and we don’t want to forget anything.” Remember that your children will likely be in emotional shock after you tell them your intentions to end your marriage, and they will not be able to absorb everything you say this first time. Be prepared to have the same conversation with them numerous times. Their shock and grieving will interfere with them being able to take in all you are sharing.
  3. First, tell your children that you love them very much, that you will always love them and always be their parents. Assure them that they will continue to have both parents’ emotional support and love in the newly restructured family.
  4. Tell them that the two of you have decided not to be married anymore and live in different homes because you have adult problems between you that you have tried to solve but haven’t been able to. Avoid using the word “divorce” because it is laden with negative connotations. Assure your children that this is NOT THEIR FAULT. Children often automatically assume it IS their fault.
  5. Avoid saying that you don’t love each other anymore. Children then think that their parents could also stop loving them one day, which could unsettle them and the stable foundation of having two loving parents.
  6. Avoid blaming each other. Now is the time for the two of you to have a united front with your children. Remember that this news will shatter their view of their family as they have known it. Blaming each other puts them in the middle of your pain and conflict, causes them to experience divided loyalty, feel that they need to choose sides, and feel guilty for loving both of you. Children often report that they hated being put in this position and feeling that each parent attempted to form an alliance with them against the other parent.
  7. Next, tell them what is going to remain the same. Tell them that you are all still family, that you will always be their parents, and that you will always love them. Tell them you intend to be friendly so that you can both attend their activities and family gatherings and not create tension for them, for other family members, or their friends. Tell them if one of you intends to stay in the family home if you know this. Assure them that they will be remaining in their same schools, same activities, etc., if this is true. If you don’t yet know all that will remain the same, it is ok to tell them that. Assure them that you will tell them when you do know more about what will stay the same.
  8. Next, tell them what is not going to remain the same. Tell them if you both will be moving into new homes and, at the appropriate time, that they can be involved in seeing the new homes or looking for them with you after you have narrowed your choices down to two options. It’s important to be neutral and factual. Resist being a victim or a martyr. It will only make them feel guilty.
  9. If they ask you a question you don’t know the answer to yet, for example, “Will we stay in this house?” it’s ok to tell them you don’t know the answer to that question, and when you do, you will tell them.
  10. Remember that you are still their parents. It is your job to put their feelings above yours and provide them with the support they need to hear, feel, and understand what you share with them. Acknowledge that you realize the announcement is a shock and that their feelings (anger, sadness, grief, shock, etc.) are ok. Focus on and be empathetic with THEIR feelings. Don’t talk about YOUR feelings, e.g., how you haven’t been happy for years, how you deserve to be happy, etc. Having just received such painful news, they will be unable to express their happiness for you, and it is unreasonable for you to expect them to do so. Remember, what you are telling them is rocking their familial foundation and rewriting their family history. They are losing their “family nest.”
  11. Tell them that you still believe in family and that you hope they will too. Tell them that you don’t expect them to take care of you emotionally or physically. That is your job, not theirs.
  12. Avoid telling them that you stayed together or delayed restructuring your family because of them. This will make them feel guilty for your unhappy marriage. Depending on their ages, they may already be recalling their childhood memories and wondering: “What was real and what wasn’t real? Were you really happy on those family vacations?” Divorce destabilizes the family system and inevitably shakes every family member’s perception of their past, present, and future.
  13. Assure them that this will be a process for all of you to move through, at your own pace and in your own way. Assure them that you will always love them and always be there for them in whatever ways will be most helpful to them. You want them to know that they aren’t alone, so they don’t become isolated and depressed. Encourage them to speak with a counselor or youth pastor about their feelings. Tell them you intend to talk with a counselor and that you will all get through this together.

January is National Child-Centered Divorce Awareness Month

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By Carol R. Hughes, Ph.D., LMFT, Child Specialist and Divorce Coach

 

“Children are like wet cement.  Everything that falls on them leaves an impression.”
~ Dr. Haim Ginott, World Renowned Child Psychologist

Often married adults include as one of their New Year’s resolutions that they are going to “start a new life” by filing for divorce.  For this reason, there is an increase in divorce filings in January.  This is why January is National Child-Centered Divorce Awareness Month.

When parents file for divorce, how does it affect their children?  It depends.

For decades, the research about children and divorce has indicated that children report that the news of their parents impending divorce and how their parents divorced made a lasting impression on them, even into their adulthood.  Most parents want to prevent emotional and psychological damage to their children during and after divorce, but they do not know how to do so.

Divorce is the number one stressor for adults, second only to the death of a loved one.  So, it is not surprising that divorcing parents find it difficult to be their best selves for the sake of their children.  In fact, research has found that due to the stress of divorce during and after divorce, parents’ ability to effectively parent their children is diminished.

Research also indicates that the number one predictor of children’s maladjustment during and after divorce is the level of conflict between their parents.  When parents are unable to model an amicable relationship with each other, are angry with each other, and engaged in the “battle” of divorce, their children are caught in the middle, drawn into taking sides, and they suffer.  Children do not have the capability to deal with such adult situations and lack the capacity to process the overwhelming emotions that arise in “win-lose” divorce.  How do parents become their best selves during such stressful times?

During divorce, parents typically fight about money and children.  One of my colleagues reminds parents that children are the true wealth of the family.  I believe that this is true, so for almost two decades, I have educated parents about a child-centered, respectful, out of court option for divorce called Collaborative Divorce, where parents learn how to work together rather than fight against each other.  Parents learn how to keep their children in the center rather than in the middle of their divorce.  They learn that it is crucial that their children feel safe and secure to love both parents.

Collaborative Divorce professional teams include a Child Specialist, who is the voice of the child.  Research indicates that, when children have a voice in their parents’ divorce process, talking with a professional who listen to them and educates them about this difficult family reorganization that they are experiencing, the children are better adjusted, the parents are better adjusted, and the parents’ agreements are more durable.  This is a win-win for parents and most importantly for their children.

How to Help Your Children During Separation and Divorce

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By Carol R. Hughes, Ph.D., LMFT

“If we don’t stand up for children, then we don’t stand for much.”
~Marian Wright Edelman, Founder, Children’s Defense Fund

 

Research about the effects of divorce on children indicates that:

  • Each year, over 1 million American children experience the divorce of their parents.1
  • Ongoing parental conflict increases kids’ risk of psychological and social problems.2
  • Improving the relationships between parents and their children helps children cope better in the months and years following the divorce.3

Children are the innocent victims of divorce.  Divorce ranks second only to the death of a loved one as life’s most stressful experiences.4  Litigation, which by definition is adversarial, can compound that stress exponentially due to the hostility it can engender and the exorbitant costs that parents can incur.  “Combat divorce,” a common term for litigation, requires that each parent have the biggest battleship armed with the biggest guns, which take aim at the battleship of the other parent.  Let’s remember that, no matter what else changes, each of these soon to be “ex-spouses” forever remains their child(ren)’s other parent.  During the process of litigation, that obvious fact can become obscured in the harsh and adversarial language used to characterize the other spouse, thus making it almost impossible for each parent to think of the other parent as their child(ren)’s other parent and as a parent who possesses positive qualities.

So where are the children in this process?  To continue the “combat divorce” metaphor, they are huddled together in a foxhole wondering what has happened to the family they once knew.  As they tenaciously cling to each other in this bunker, they are shaking, fearing whether the next mortar will land in their foxhole or whiz over their heads.  Will they lose one or both of their parents permanently?  After all, it seems like it has been a short journey from their happy family with Mom and Dad playing with them in the park to the day when Dad or Mom moved out.  They never imagined that one of their parents would not be with them in their home.  Recently, they have overheard Mom and Dad fighting and talking about having to sell the house where they grew up and where they created so many happy memories.  They hear Dad and Mom discussing that they may have to change schools.  The thoughts are whirling through their minds: We will have to make new friends!  We won’t be able to be on our same soccer team!  What if we won’t be able to keep our doggie Duke and our kitty Miss Trouble because in our new rented house no pets will be allowed!  Mom and Dad are so stressed.  We can’t bother them with all these questions.  We must be very good and very quiet, so they don’t have to worry about us too.  We need to forget about how we feel and make sure Mom and Dad are ok.

The children have experienced so much uncertainty and unpredictability recently that on an unconscious level they realize that they cannot predict their future.  Nothing seems certain.  Life used to seem certain, but not any more.  So much has changed in such a short time, it certainly seems possible to them that they could lose their mom or dad.  Who will provide them with certainty, stability, and predictability?

“A nation’s greatness is measured by how it treats its weakest members.”
~ Mahatma Gandhi

When parents are in conflict, their children are in danger.  On-going parental strife produces the single most negative impact on children for years into their future.  Previously well-adjusted children can become at risk for both psychological and physical symptoms such as anxiety, depression, isolation, sleep disturbance, nausea, headaches, and the inability to focus and concentrate.  These symptoms can subsequently cause a delay in children’s development.  Difficulties in school academically, emotionally and socially can ensue.  Adult children of divorce commonly report that they felt as though they lost their childhood during and after their parent’s divorce, because the toxicity of the “combat divorce” permeated every aspect of their lives, causing them to struggle with the symptoms described above and necessitating that they “grow up” before they were developmentally ready.

Just as wartime combat is a survival state, so combat divorce is an emotional, and sometimes even physical, survival state for children.  Parents often need help in understanding this.  They need help preventing their children from becoming the innocent casualties of their divorce.  Research tells us that 80% of the issues of divorce are emotion-driven.  While parents are in the midst of such emotional upheaval, even the most well-intentioned parents can become overwhelmed and lose sight of what is genuinely in their child(ren)’s best interest.  Before, during and after divorce, parents and their children can benefit from the guidance and assistance of peacemaking professionals, who are focused on the well being of their family now and into the future.  Most parents with minor children are going through divorce for the first time.  While negotiating this extremely difficult life transition, they have no experience from which to draw.

Collaborative Divorce and Mediation are confidential, no-court divorce options, which offer parents and children a peaceful, even transformative path for the restructuring of their family.  Research shows that mediation can be beneficial for emotional satisfaction, spousal relationships and children’s needs.5  Parents focus not on prevailing but on peacemaking, not on winning but on healing, because real winning means not wanting the other person to lose.  No-court divorce offers divorcing parents the best possibility that they can share the joys of parenthood.  Such sharing is one of the best gifts parents can give their children, because children feel and treasure their parents experiencing this joy.  When divorcing parents learn how to prevent their children from being caught in the crossfire in the middle of a combat zone and put their children in the center of healthy interactions, their children can remain children.  They are unburdened by adult concerns.  They don’t have to worry about finances, how Mom and Dad are coping, fear of being loyal to one parent and not the other, being in an alliance with one parent against the other.  being afraid to express their feelings for fear of hurting Dad or Mom or of having Mom or Dad be angry with them.  When their life as they have known it is crumbling around them, children deserve to experience the benefits of no-court divorce.

 

Consider these two stories

The first story: Two divorced parents were called to an emergency scene at a lake to rescue their child who had had fallen into a lake.  Rather than springing into action and coordinating the child’s rescue, they immediately began arguing about whose fault it was that the child had fallen into the lake.  The child drowned.

The second story: (For ease of style, I use the generic pronoun “he” and its derivatives.)  Two divorcing parents were attending a co-parenting training class.  Ten pairs of parents were present in the class.  The instructor gave the directions for the first exercise.  “Sit down across from your partner and face each other, with your right elbows on the table.  Grab your partner’s right hand with your own right hand and don’t let go.  Each parent will get one point every time the back of the other parent’s right hand touches the table.  The goal for each parent is to get as many points for himself or herself as possible during the exercise.  Keep your eyes closed and be completely indifferent to how many points your partner gets.  You will have one minute.  Ready, set, go!”

For one minute, the pairs struggled as each parent tried by physical strength to force the back of the other’s right hand down to the table.  With much effort and against the physical opposition of each partner, almost no one got more than a point or two.  There was a single exception.  Almost immediately, one parent remembered that his goal was to get as many points as he could for himself, and then he became utterly indifferent to how many points his partner got.  Instead of pushing on his partner’s hand, he pulled it down to the table, gave his surprised partner a quick and easy point, took a quick point for himself, and then gave his partner another point.  Without talking to or looking at each other, the two parents, with their elbows on the table, then swung their clasped hands harmoniously back and forth as rapidly as they could, thus collecting a large number of points for each of them.

Upon the conclusion of the exercise, each pair of parents reported to the group how many points each had collected.  No one had more than three points, except for the parent pair who had cooperated, each of whom had earned more than twenty points.

Despite the directions to the parents, that used the word “partner” and despite the instructions that they were to be indifferent to how many points their partner collected, virtually all parent participants had assumed that they and the one with whom they were doing the exercise were adversaries.  That adversarial assumption dominated their thinking and prevented them from getting as many points as they could have.

(Beyond Reason: Using Emotions As You Negotiate, by Roger Fisher and Daniel Shapiro, gave me the inspiration for this second story.)

A litigation attorney, tells me that when potential clients consult with her regarding retaining her for litigation, she educates them about the reasons clients should not consider litigation as an option to settle a dispute.  She explains that, if they value the relationship with the persons against whom they are considering bringing the lawsuit, litigation is likely not their best choice.

Do you think your children want you, their parents, to value your relationship with each other, just as they value and love each of you?  How will they feel most secure, knowing that their parents are partners or combatants?  What will they learn from you if you are engaged in combat divorce?  What will they learn from you if you model cooperative problem solving with integrity and mutual respect?  Who “wins” when one of your children’s parents “loses?”  What is the legacy you want to co-create for them?

“I was never ruined but twice – once when I lost a lawsuit, once when I won one.”
~Voltaire

Original material © 2018 Carol R. Hughes, Ph.D., LMFT

 

Notes

  • Fagain, P., Rector, R. (2000).  “The Effects of Divorce on America” The Heritage Foundation Background Executive Summary, No. 1373.
  • Kelly, J. B. (2005).  “Developing beneficial parenting models for children following divorce.” Journal of the American Academy of Matrimonial Lawyers,19: 237-254.
  • Velez, C.E., Wolchick, S.A., Tein, J.Y., and Sandler, I. (2011).  “Protecting children from the consequences of divorce: A longitudinal study of the effects of parenting on children’s coping processes.” Child Development, 82 (1): 244-257.
  • Holmes, T, and Rahe, R., (1967) “The Social Readjustment Rating Scale.”
    Journal of Psychosomatic Research, 11(2): 213-218.
  • Shaw, L. (2010).  “Divorce mediation outcome research: A meta-analysis.” Conflict Resolution Quarterly, 27(4): 447-467.

 
Carol R. Hughes, Ph.D., is a licensed marriage, family and child therapist, a board-certified clinical hypnotherapist, an EMDR therapist and a former professor of Human Services at Saddleback College.  In private practice in Laguna Hills, CA, since 1983, Dr. Hughes is a respected expert and sought-after speaker on the effects of divorce on children.  In 2003 she became one of the founding members of Collaborative Divorce Solutions of Orange County, and is also a co-founder of and trainer for the Collaborative Divorce Education Institute in Orange County, CA, a non-profit organization, whose mission is to educate the public about peaceful options for divorce, as well as to provide quality training for collaborative divorce professionals.  She frequently trains and mentors collaborative practitioners and has appeared on the Time Warner Public television series “How to Get a Divorce”.  Carol has been a presenter at conferences of the International Academy of Collaborative Professionals and at California’s annual statewide conferences for collaborative professionals.  In 2011 Carol was honored with the Eureka Award, which recognizes those who have made significant contributions and demonstrated an abiding dedication to establishing and sustaining Collaborative Practice in California.  For a complete listing of her collaborative practice training and teaching workshops please visit www.CollaborativePractice.com, the website of the International Academy of Collaborative Professionals, and click on the “Locate a Collaborative Professional near you” link.  In addition, please visit her website at www.DivorcePeacemaking.com and www.CDEI.info.

 

7 Ways to Make a High Conflict Divorce Easier on Your Children

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by Jann Glasser, LCSW, LMFT, Divorce Coach, Co-Parenting Specialist

 

1. Recognize and Deal with Signs of Distress in Your Children.

  • Altered sleep or eating habits
  • Declining scholastic performance
  • Frequent, sudden or broad mood changes
  • Acting out with anger, aggression, or defiance
  • Withdrawal from family and friends
  • Lethargy or disinterest
  • Infantile or other regressive behavior
  • Becoming accident-prone
  • Excessive catering to parents, which may signal a child’s self-blame for the divorce

If you observe such behavior, contact a mental health professional.  Also consider consulting with a divorce coach who can help improve communication with your children, and your ability to care for them during your divorce.

 

2. Step AWAY from the Buttons!

Spouses in dysfunctional marriages know well how to expose each other’s vulnerabilities and provoke each other’s anger.  Use that knowledge to avoid pushing your spouse’s buttons, because anything that increases parental conflict increases the prospects for harm to your kids.

Also, use what you know about your quarrelsome co-parent to avoid confrontations.  During any encounters with your spouse be careful not to convey disrespect in front of the children either by words or by body language.

 

3. Confirm Substantive Conversations with Your Co-Parent.

Confirming conversations in writing can make it more difficult) for your co-parent to claim that he/she had no knowledge of a parenting schedule change, or that you failed to share notice of a teacher’s meeting.  A quick email or text can avoid many such “misunderstandings,” and save your kids the additional conflict such misunderstandings generate.

 

4. Include Sufficient Details in Any Agreements You Reach.

Avoid vague and unspecific language, which opens the door to confusion and misinterpretation.

 

5. Plan Ahead for Constructive Discussions with Your Co-Parent.

Avoid additional conflict and enhance your chances of productive discussions by leaving as little to chance as possible during discussions.

An example could be whether your son should go out for his high school football team.  Your spouse argues the virtues of discipline and teamwork, but you are concerned about evidence of concussive brain injuries suffered by high school football players.

First, clearly define the scope of the discussion to the here and now.  That will help prevent it from deteriorating into a blame game of past injustices, real or imagined.  Take some time before the discussion to understand your spouse’s concerns.  You may realize that your spouse is not just arguing to argue but genuinely believes that playing on the team would be good for your son.

During the discussion, use that understanding to help you address your spouse with empathy and respect.  You might concede the benefits of discipline and teamwork but suggest another sport that offers them without as much health risk.

Once the discussion has reached its conclusion or is no longer productive, end it politely but firmly.

 

6. Reassure Your Children

Tell your kids obvious things that bear repeating: that you love them, that the divorce is not in any way their fault, and that you will be there to help them through it.  Revisit those themes often.  It may sound corny, but those messages are critical to your children.

 

7. Keep Your Kids off the Battlefield.

Don’t argue in front of the kids.  The more directly children experience their parents’ high conflict, the worse off they are.

Don’t complain about, disparage or mock your co-parent at the breakfast table, on Facebook, or anywhere else.  This increases the anxiety that causes lasting emotional harm to children.  Your conduct is the model for how your children will handle difficult situations they may encounter when they become parents.

Arbitration and Mediation in California: What’s The Difference in These Forms of Dispute Resolution?

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by Diana L. Martinez Collaborative Lawyer and Mediator, Law and Mediation Office of Diana L. Martinez

As a family law lawyer, I really look forward to my time on duty to volunteer at Riverside County Superior Court for VSC (Voluntary Settlement Conference) day. It is offered two Fridays per month and is THE most successful mediation program in the nation with an over 90 percent success rate!

Why? Because, in order to be a mediator on this panel, you must have the highest training and qualifications as both a family law lawyer and as a mediator. Not only do we donate our time, we must be in practice at least 10 years and have hundreds of hours of mediation training and practice under our belts. Other family law mediation programs that either do not have a structured program with high mediator qualifications, or that pay retired judges to do this work, enjoy a success rate below 60 percent.

Judges have an incredibly difficult job. It takes very specific skill sets to be a good judge. But being a talented judge does not, in and of itself, make you a good mediator.

I also volunteer as a fee arbitrator in attorney-client fee disputes for the California State Bar and for the San Bernardino County Bar Association. My role as an arbitrator is that of a judge: to listen to testimony, review the evidence, and make a ruling based on the law. There is no facilitation or brainstorming to help the parties create agreements together. As a result, the parties tend to stay polarized, hoping I will rule in their favor.

In contrast, a mediator works to find common ground, and assists the parties in bridging gaps, focusing on their goals and the reality of the benefits and risks of resolving versus litigation.

During a recent mediation in Riverside*, I had to use my skills as an arbitrator to attempt to resolve a divorce dispute in mediation. In this particular case, the husband was represented by counsel. The wife was not. The couple was married in the Netherlands and moved to California two years prior to the divorce. They had been married for 15 years. They had already agreed to the division of their assets and debts. The final item preventing them from resolving their divorce for nearly two years (yes, they had been divorcing for two years) was spousal support. The wife was not a legal U.S. resident and had struggled finding employment. During the marriage, she worked as a babysitter. The husband ran his own consulting business and was always the higher income earner.

As an arbitrator, looking at the evidence presented, the ruling is quite simple. Based on California law, Husband would be required to pay spousal support until one of the normal, terminating factors in a long term (over 10 years) marriage: 1) death of either party; 2) remarriage of wife; or 3) further order of the court. Wife, however, would have to make reasonable, good faith efforts to become self-supporting, in order to continue to receive support.

As a mediator, it is important to help both husband and wife craft an agreement that factors in wife’s financial needs and goals, as well as husband’s sense of unfairness of having to pay for so long a time. In this case, wife appreciated this and proposed that husband pay her only what she was short in rent each month ($200) for five years. This would give her time allowing her to get her legal resident papers in order and find a stable job, as she explained it, after which she would agree to “terminate” support.

Relying on a judge for a “fair” decision on your financial settlement during divorce is an expensive roll of the dice.

In a long-term marriage, courts do not, generally, terminate support; they may reduce it to zero dollars, but they will leave open the ability to request it in the future. This proposal, legally, put a lot of value on the table for the husband.   As a neutral, and especially given that wife was unrepresented, I did have to educate both parties about that legal value and the implications of a spousal support termination. To all knowledgeable in family law, this proposal was golden.

Husband’s attorney instructed him to reject the offer as completely unreasonable. His argument? In the Netherlands, his wife would not have received spousal support at all. Since the parties lived there for most of their marriage, wife should not be allowed to benefit from California spousal support laws. They argued the wife should agree to no more than six months of spousal support, which would then end. This sounded logical to husband.

Sadly, the husband’s “logic” is not the basis upon which family law judges issue orders. My inner arbitrator asked husband’s lawyer to explain the legal basis for this argument. It was a novel argument to me, and I’ve been in practice for nearly 20 years. His response: “Yes, it is a case of first impression, so I have to research this more.”

Excuse me? You have no legal basis for this argument, which means your client will be paying you for research that will very likely not result in the expected outcome. In addition to this expense, Husband’s lawyer planned on having a vocational evaluation done on wife to determine how much she could reasonably be earning. Really? She’s undocumented, and lawyer wants to do a vocational evaluation. Husband, as the sole income earning, would have to front this cost.

The court had already told the litigants prior to sending them off with their mediators that, if they do not resolve their matters, the next available court date would not be for another six months. This meant that husband will continue to pay his lawyer during that time, for research on an issue that has no support in law. If we calculate the legal fees at $1,750/month (lawyer rate of $350/hour, at five hours of legal work per month, including research on the foreign marriage issue, gathering information on wife’s earning ability, history of income during the marriage, and so forth), for six months, it will cost the husband $10,500 prior to his trial readiness conference. This is not the trial itself. It is a court hearing to confirm you are ready for trial.

The trial would likely be set within the following one or two months after that hearing, and trial preparation by his attorney would be far greater than five hours. But let’s keep it conservative for this discussion and add only another $1,750 to finish this case through trial. Now we have $11,750 in legal fees for the husband, in the hopes the judge will side with him and terminate spousal support, despite the law.

Let’s compare this with the wife’s proposal to resolve their case through mediation, six months before trial readiness. She proposed $200/month for five years = $12,000, and a signed, binding, agreement to terminate spousal support. That’s a guarantee, folks. Remember, by terminating, no court, in any state, would have the legal ability to order more support, ever!

Sadly, husband trusted his lawyer in the above mediation. The parties will end up going to trial, based on his lawyer adding to husband’s sense of unfairness, rather than educating his client as to the reality of the law. Logic would dictate that it would be better to take a sure bet for $250 more, than pay almost the same amount and risk the judge applying the law, as they are required to do.

In mediation, husband had the ability to cut his losses and be done. As a judge, there is no such flexibility. The judge or arbitrator (same function) is required to apply the law. But when emotion (that sense of unfairness) takes over, and a lawyer creates a false hope by feeding into that emotion, the only “winners” are the lawyers. There is no benefit to either spouse. There is no benefit to their families. The court battle continues.

If you expect a judge or arbitrator to “do the right thing” because he or she will see and understand the unfairness of it all, you will be disappointed. A judge does not have that kind of flexibility. They may find one argument more persuasive than another, but that means it follows the law more closely than the other. It does not factor in emotion or “fairness.”

In the above example, the law does not look at where you were married and apply the rules of a foreign country. If you lived in California six months prior to filing your petition for divorce, you fall under the laws of California – no exceptions based on “it’s not fair.” A judge must render decisions based on the law and the evidence properly presented. Don’t forget to factor in the financial and family relationship costs of the continued battle.

*I’ve changed certain facts of the case to protect confidential information, but have kept the substance the same.

Experts Contribute to Best Practices at Collaborative Practice California Conference

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Orange County Collaborative Practice professionals will share their expertise with colleagues in April at the annual Collaborative Practice California Conference XII in Redondo Beach.

Members of Collaborative Divorce Solutions of Orange County (CDSOC) are in demand as professional education panelists and seminar leaders throughout Fall 2017 due to their expertise and experience working with a diverse array of Orange County clients in the Collaborative approach to divorce.

“Many collaborative professionals are committed to continuing professional education in order to provide the best service to our clients,” said Dr. Carol Hughes, CDSOC member and workshop leader. “The annual conference of Collaborative Practice California is one venue for us to do this.

“We CDSOC members are honored to be contributing to the further growth of our Collaborative colleagues throughout the state. Ultimately, the reward is offering better options to clients who want to avoid the trauma, time and expense of a litigated divorce or other disputes,” added Dr. Hughes.

Collaborative Practice California presentations include:

Left to right: Cathleen Collinsworth, Carol Hughes, Bart Carey

Collaborative Family Lawyer and Mediator Bart Carey, Divorce Coach and Child Specialist Dr. Hughes, Ph.D., LMFT, and Financial Specialist Cathleen Collinsworth, CDFA™, MAFF™ will facilitate an advanced seminar titled “Grand Rounds for Collaborative Practitioners.”

The workshop format introduces the “Grand Rounds” concept used in the medical profession. A supervising physician-professor and small group of residents visit individual patients in their hospital rooms, diagnosing their symptoms and discussing together how best to help each patient through collaborative problem-solving.

In a similar way Bart, Carol and Cathleen will apply their expertise to analyze individual case challenges presented by participants. The team will “diagnose” and assess the symptoms and prescribe the best course of action.

As a result of the workshop, the attendees will learn how to analyze case challenges presented by their own clients, and then design and implement creative solutions on their behalf.

Collaborative family lawyer and mediator Diana L. Martinez will present a workshop on diversity and cultural issues in divorce.

Collaborative Family Lawyer and Mediator Diana L. Martinez, will co-present a seminar with other California Collaborative professionals discussing cultural competency in family law practice, “Becoming Culturally Competent and Ethically Responsible: Beyond Basics.” Professionals working with families going through divorce and separation need to increase awareness and skills to discern the complex aspects of culture, world views, and communication patterns of the families they interact with during the legal process.

Participants will also learn to identify sociopolitical aspects of racism, power and privilege, and how these may impact issues of trust and create barriers while navigating the legal process. Being able to empathize and navigate these challenges will lead to greater understanding of client needs and achieve a successful outcome without resorting to litigation.

Patrice Courteaum M.A., LMFT, Divorce Coach and Child Specialist

Licensed Marriage and Family Therapist, Divorce Coach and Child Specialist Patrice Courteau, MA, LMFT, will participate in a panel discussion about effective Collaborative Practice outreach in a digital age.

Orange County families who are considering a Collaborative approach to their divorce can be confident in the guidance and qualifications of CDSOC members, who not only uphold high standards in their personal practice, but who are called upon to help California’s Collaborative professionals develop the highest standards in this area of family and civil law.

CDSOC members are available to speak to groups of professionals and to any interested organization or program about the Collaborative Practice approach to solving dispute in family law matters or any civil dispute instead of resorting to time consuming, costly litigation that destroys ongoing relationships. Contact CDSOC at 949-266-0660.

Mom and Dad, Here’s What I Need During Your Divorce

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by Jann Glasser, Marriage and Family Therapist (MFT), Licensed Clinical Social Worker (LCSW), Coach/Psychotherapist, Collaborative Coach

For children, divorce can be stressful, sad, and confusing. At any age, kids may feel uncertain or angry at the idea of their parents splitting up.

As a parent, you can make the process and its effects less painful for your children. Helping your kids cope with divorce means providing stability at home and attending to your children’s needs with a reassuring, positive attitude. It won’t be easy, but these tips can help your children cope.

A Child’s Wish List During Their Parents’ Divorce

  • I need both of you to stay involved in my life. Please communicate with me. Make phone calls, send texts and ask me lots of questions, but respect my right not to answer all the time. When you don’t stay involved, I feel like I’m not important and that you don’t really love me.
  • Please stop fighting and try hard to get along with each other. Try to agree on things that have to do with me. When you fight about me, I think that I did something wrong and I feel guilty.
  • I love you both and want to enjoy the time that I spend with each of you. Please support me and my separate time with each of you. If you act jealous or upset when I am with my other parent, I feel like I need to take sides and love one of you more than the other.
  • Please communicate directly with my other parent so that I don’t have to send messages back and forth. I don’t want to be your messenger.
  • When talking about my other parent, please say only nice things, or don’t say anything at all. When you say mean, unkind things about my other parent, I feel like you are expecting me to take your side.
  • Please remember I want both of you to be a part of my life. I count on my mom and dad to raise me, to teach me what is important, and to help me when I have problems. Please choose not to be another one of my problems!

It’s normal to feel uncertain about how to give your kids the right kind of support through your divorce. It may feel like uncharted waters, but you can successfully navigate this uncertain time—and help your kids emerge from it feeling loved, confident, and strong.

Your patience, reassurance, and a listening ear can minimize tension as children learn to cope with new circumstances. By providing routines kids can rely on, it reminds them they can count on you for stability, structure, and care.

As you establish a working relationship with your co-parent, you help your kids avoid the stress that comes with watching parents in conflict. During this transitional time, you can’t be without some feelings of uncertainty and stress yourself, but you can greatly reduce your children’s pain by making their well-being your top priority. Put them at the center of your interests – not in the middle of your battlefield.