Docstoc
EXCLUSIVE OFFER FOR DOCSTOC USERS
Try the all-new QuickBooks Online for FREE.  No credit card required.

Patrick A. McCall

Document Sample
Patrick A. McCall Powered By Docstoc
					                    The Law Offices of


              PM
          Patrick A. McCall
                  Attorney for the Family

                 714-740-8400
attymccall@earthlink.net www.patrickmccall.com
 765 The City Drive South, Suite 350 Orange, California 92868
            A Winning Combination of
     Experience, Specialization and Compassion

                             Building your Case             requires litigation be assured that few — if any
                             for an Optimal                 — family lawyers in the area have his proven
                             Outcome                        trial experience, reputation and record of success.

                              Divorce is a complex          Personal Familiarity with a Blended
                              matter that contains          Family
                              numerous legal intrica-
                              cies. To ensure that your     For many years, Patrick was a single father with
                              divorce yields a favor-       four daughters, and now he enjoys being part of
                              able outcome, highly          a blended family, which includes three step-
                              experienced California        children. This experience helps him support clients
family lawyer Patrick McCall thoroughly prepares            who are dealing with a changing family structure.
your case on five proven principles from beginning          With compassion, he’ll help prepare you for your
to end: studying your case inside and out to iden-          new, post-divorce life so that you can confidently
tify the facts that will stand up in court; the attitudes   move forward.
of the parties involved; the abilities of the oppos-
ing counsel; the judge who hears your case; and the         Keeping your Divorce Costs Down
strategic approach that will lead to the best possi-
ble outcome in the least amount of time, and at             Divorce can be an expensive proposition. However,
minimal stress and cost.                                    Patrick looks out for his clients by striving to keep
                                                            his fees affordable and, typically, substantially less
Renowned Family Law Specialist and                          than other family lawyers. He is able to do this
Lecturer                                                    without compromising his high quality standards
                                                            by using a team of skilled associates and paralegals
Patrick accepts cases throughout California and             who bill at a lower rate. He also uses cost/benefit
has earned a widespread reputation among his                analysis to help clients choose strategies that are the
peers throughout the state and country. He is a             most cost effective and financially beneficial in
Certified Family Law Specialist by the State Bar            the long-run.
of California, Board of Specialization — a rare
distinction enjoyed by a very small fraction of                   “In every case, I work hard,
lawyers in California. In addition, Patrick has             strategize from the beginning and keep
taught college-level courses on family law, and
                                                             my clients fully aware of all options."
over 60 continuing education courses in family
law for lawyers, judges and accountants. He has
also been consulted by the media on family law
issues.                                                                      The Law Offices of


Unmatched Trial Experience

Since 1983, Patrick has successfully tried hun-
                                                                      PM
                                                                  Patrick A. McCall
                                                                           Attorney for the Family

                                                                            714-740-8400
dreds of cases in all areas of family law, especial-
                                                                         attymccall@earthlink.net
ly in the areas of domestic violence and custody
applications. While he and his team are focused on                       www.patrickmccall.com
helping you quickly benefit from a fair and equi-                 765 The City Drive South, Suite 350
table out-of-court settlement, if your divorce                         Orange, California 92868
The Divorce Process
A basic guide to the legal process behind ending your marriage.
By Jeffrey Cottrill

         o two divorces are exactly a       be important between the separation and

N
                                                                                              Check DivorceMagazine.com for in-
         like. Every marital breakup has    the final outcome. For example, if one        formation on the grounds for divorce in
         unique legal, financial, and/or    spouse moves out of the home and the          your state or province. Most states and
parenting issues that require their own     other has no income, how will the             all Canadian provinces, however, don’t
resolution strategies. But every divorce    latter feed the kids and pay the bills?       require fault as a prerequisite — so you
undergoes the same general journey          For more information about tempor-            don’t have to justify filing by accusing
from initiation to closure. Whether you     ary orders, visit www.divorcemag.com/         your spouse of wrongdoing.
and your spouse make this journey           articles/Financial_Planning/getting_
cheaper and faster is up to you, but the    prepared_temp_orders.html.                    Collecting information and
destination is always the same: from                                                      discovery
shared to separate lives.                       You should hire a divorce lawyer
                                            and/or mediator, and financial advisor, as       Once you’ve hired your divorce
   Here’s a basic primer of how the di-     soon as possible. You’ll set your tempo-      lawyer, you must gather all relevant in-
vorce process works in the United States    rary order/agreement in a brief, relatively   formation for your lawyer’s perusal:
and Canada. Bear in mind, however, that     informal hearing before a judge — so          • Full names, addresses, phone num-
I’m not a legal professional. You’ll want   prepare a complete list of what you want         bers, and Social Security or Social
to speak to a family lawyer to find out     to request in advance. Among items you           Insurance numbers of you, your
how the options vary in your state or       can request: temporary custody and visi-         spouse, and your children;
province, as well as how your own situ-     tation arrangements; a restraining order      • The date of marriage, date of cohab-
ation affects the process.                  so your spouse won’t contact you; child          itation, county or region where the
                                            or spousal support; and/or who gets the          wedding occurred, the wife’s maiden
Temporary orders and filing the             car and house.                                   name, and any information about
divorce papers                                                                               prior marriages of either spouse (in-
                                                Next, you or your spouse files a peti-       cluding the names and prior names of
    One of the first things you and your    tion, application, or complaint for divorce      ex-spouses);
spouse have to do after you separate        with your local family court. The person      • A copy of your premarital agreement
is to get a “temporary order” or agree-     who files, or plaintiff, serves a Summons        (or other domestic contract) and
ment. This is extremely important,          upon the other spouse stating that they          information about any prior legal
because it could set the precedent for      want a divorce and what they are seeking         proceedings, separations, or marital
your final divorce settlement. A tempo-     in terms of property, child custody, sup-        counseling during the marriage;
rary order/agreement establishes quick      port, etc. The other spouse, or defendant,    • All available financial data, includ-
decisions about the children, property,     must answer the Summons and, if they             ing: income-tax returns from the past
bank accounts, and other issues that may    wish, can make their own claim.                  several years; a recent pay slip; the


                                                                                                             Divorce Guide    |3
   major assets and liabilities of both     decide the outcome if you can’t come to    lawyers representing you and your
   you and your spouse; budget work-        agreement on your own. In an uncon-        spouse present their cases before the
   sheets; insurance policies; credit-      tested divorce, both of you agree on       judge. In most cases, only the lawyers
   card statements; wills; and any credit   how to divide your assets and debts,       are permitted to speak; however, if
   or mortgage applications.                who gets custody and pays child            you are going the Do-It-Yourself route
                                            support, and whether one spouse needs      in your divorce (a path that’s only rec-
    Unless you create a separation          to pay spousal support to the other.       ommended for very simple divorce
agreement, your lawyer will use this as     Obviously, an uncontested divorce          cases), you will be able to represent
a starting point for the discovery          will be faster and simpler. But even a     yourself in this hearing. Once the judge
process. The lawyer gets as much spe-       divorce that starts with major disagree-   makes a decision on the matter, the reg-
cific information about the marriage as     ments can be worked out if you choose      ular process continues as before.
possible, to work out the financial and     to make it that way, and the majority of
children’s issues fairly. Most of dis-      cases do settle.                           Litigation or negotiation?
covery involves financial matters, for
which your lawyer needs specific, ac-          If you’re in the United States, ask         If your divorce is contested, you and
curate details. From the value of items     your lawyer if you’re eligible for a       your spouse must decide how to resolve
you bought during the marriage to           “summary” divorce. This is a simpler       your divorce. Will you fight it out
stocks, pensions, and revenue from a        and faster divorce process which           through adversarial litigation, or can
business, you and your professionals        involves less paperwork, fewer court       you set aside personal feelings long
(e.g. lawyers, mediators, financial plan-   appearances, and less time in negotia-     enough to negotiate outside of court? If
ners, accountants, appraisers, etc.) have   tion. However, this will only work         you want to avoid the “divorce from
to retrieve documentation of every dol-     if your marriage was relatively short      hell”, Alternative Dispute Resolution
lar value — including that of premarital    and if you have no children, little        (ADR) methods, such as arbitration,
assets. For articles on preparing for a     property, and no intention to seek         mediation, and Collaborative Divorce,
deposition and separation agreement,        spousal support. In Canada, the closest    have become popular means of settling
visit www.divorcemag.com/articles/          would be an uncontested divorce or a       divorce in a cooperative environment
Divorce_Settlement_Preparation.             joint application.                         with reduced stress and expense. Some
                                                                                       states have made mediation compulsory
Contested vs. uncontested                   Motions                                    in the divorce process.
divorce
                                               If you need to readjust certain            Talk to your lawyer (and your
   There are two general types of           arrangements during the divorce pro-       spouse) about the different options.
divorce. If you and your spouse can’t       cess — such as custody, visitation, or     For more information on divorce medi-
agree on the divorce terms — or if one      support — you can initiate this by fil-    ation, go to www.divorcemag.com/
of you doesn’t want the divorce — it’s      ing a motion with the court. Next, a       articles/Mediation; for information on
a contested divorce, and a judge will       short hearing takes place in which the     Collaborative Divorce, please go to
                                                                                       w w w. d i v o r c e m a g . c o m / a r t i c l e s /
                                                                                       Collaborative_Law.

                                                                                       Trial

                                                                                          If you and your spouse just can’t
                                                                                       agree, then your case goes to trial. Di-
                                                                                       vorce trials can take many months or
                                                                                       even years, and they’re never pleasant.

                                                                                           Generally, you and your spouse each
                                                                                       tell your respective side of the story
                                                                                       before the judge (and the public). You
                                                                                       take the stand, and your own lawyer
                                                                                       asks you questions that prompt you to
                                                                                       explain your side — and then your
                                                                                       spouse’s lawyer has the option of cross-
                                                                                       examining you or challenging the
                                                                                       validity of your perspective. The same
                                                                                       goes for both sides’ witnesses (both
                                                                                       personal and professional): each of
                                                                                       you dukes it out through conflicting


4 | Divorce Guide
                                                                                        process is very quick, the waiting
                                                                                        period must elapse before the judge
    Will you fight it out through adversarial litigation, or                            officially grants the divorce. Lengths
                                                                                        vary between states, but the average
    can you set aside your personal feelings long enough                                waiting period is about six months.

   to negotiate? Alternative Dispute Resolution methods                                 The divorce judgment
       have become popular means of settling divorce.                                      After all the issues have been de-
                                                                                        cided (either by you and your spouse or
                                                                                        by a judge), a court clerk reviews all the
                                                                                        papers and sends them to the judge.
testimony and attempts to make your         monthly amount of money that a finan-       When the judge signs a document that
respective case look more believable.       cially advantaged divorcee can be           officially ends the marriage (a Divorce
Finally, the judge — a stranger who         ordered (or agree) to pay their ex-         Judgment Order or a Divorce Decree),
only knows you through what he or she       spouse, to help maintain a lifestyle to     you are legally divorced — and free to
has seen in court — weighs all the evi-     which the latter has become accus-          remarry if you choose.
dence and makes all the final decisions.    tomed. Ask your lawyer whether you’re
                                            eligible for spousal support — and if so,       The divorce process is complicated,
The issues                                  don’t be afraid to take it. The purpose     and this brief summary doesn’t touch
                                            of spousal support is not to punish your    on what an emotional rollercoaster
Money and property:                         ex but to maintain your lifestyle.          ride a divorce is. It’s a wrenching ex-
                                                                                        perience that can cost a lot of money
   Who gets what? What items and ac-           Child support is what a non-             and upset your lifestyle in profound
counts legitimately belong to you? Who      custodial parent regularly pays to the      ways; it can also damage your chil-
should keep the marital home? Who           custodial parent in order to support the    dren’s psychological growth if you and
gets which car? How about the cottage?      children from the marriage. This way,       your spouse don’t consider their well
The family business? The pets?              both parents can financially contribute     being and act in a way that supports an
                                            to bringing up the children, even if        amicable divorce. But once it’s done,
    Many states classify property owned     one isn’t present on a regular basis. For   you’re free to start over — so the
by the spouses as “marital” or “sepa-       more helpful articles, go to www.           sooner you get to the end, the better for
rate” — the latter meaning that the         divorcemag.com/articles/Child_              all involved. Talk to the necessary di-
property belonged to one spouse be-         Support.                                    vorce professionals (family lawyers, di-
fore marriage or was a gift to one                                                      vorce mediators, Certified Divorce
spouse. The goal of property division is    Child custody and visitation:               Financial Analysts, accountants, thera-
“equitable distribution” — meaning an                                                   pists, etc.) to find out how to make your
even division of assets and debts.             One of the most important decisions      divorce process as quick and painless
If you negotiate asset division with your   is where and with whom the children         as possible.
spouse directly, be clear about which       will live. Is joint custody in their best
items are high priorities to you and        interests, or should they live with one        Jeffrey Cottrill is the former Manag-
which ones you would be willing to          parent full-time with regular visits with   ing Editor of Divorce Magazine.
let go.                                     the other? Unless your spouse is
                                            abusive, both of you should work to-
   The more financially complicated         gether to create an agreement in which
your divorce, the longer this will          you both get a fair share in raising your
take, and you’ll likely need an account-    children. Custody battles in court are        For more articles, and a more
ant, a business valuator, a Certified       usually full of character slurs and accu-     in-depth explanation of each of
Divorce Financial Analyst, a Financial      sations that are emotionally traumatic        the subjects covered in the divorce
Divorce Specialist, or a financial plan-    for you — and more so for the children.       process, visit www.divorcemag.
ner to make sense of all the assets         For more helpful articles, go to www.         com/articles/Separation_Divorce_
involved. For more helpful articles,        divorcemag.com/articles/Child_                Process.
go to www.divorcemag.com/articles/          Custody.
Financial_Planning.                                                                       For helpful tips on how best to work
                                            The waiting period                            with your divorce lawyer, visit
Child and spousal support:                                                                www.divorcemag.com/articles/
                                               There is usually a set minimum wait-       Divorce_Lawyers.
  Often referred to as “alimony” or         ing period between the divorce peti-
“maintenance”, spousal support is a         tion and the final decree. Even if your


                                                                                                            Divorce Guide    |5
                             Choosing the
                    Divorce Professionals You Need
                      Get the best possible advisors to help you during your divorce.
                      By Diana Shepherd, edited by Josh D. Simon


                                       ivorce is a complex process that

                              D
                                                                              court battle, you’ll probably save a
                                       affects just about every aspect        great deal of time, stress, and money.
                                       of your life: financial, emo-        • Is firm. If you end up going to court,
                              tional, physical and legal. Unless you’ve       you don’t want your lawyer to crum-
                              been married for only a short time and          ble at the first obstacle.
                              have no property, assets, or children,        • Is reasonable. You want someone
                              you’ll probably need the advice of more         who’ll advise you to settle if the offer
                              than one divorce professional to help           is fair, and not have the case drag on
                              smooth the road ahead of you. You will          to satisfy your lawyer’s need to
                              need expert services from one, some, or         “win.”
                              all of the following professionals:           • Is not in conflict with your best in-
                              lawyer, mediator, accountant, divorce fi-       terests. Don’t share a lawyer with
                              nancial specialist and therapist. While         your spouse, or hire your spouse’s
                              each of these professionals can help you        best friend (even if this person is a
                              through a challenging transition period,        friend of yours, too), business part-
                              finding the right ones can be stressful.        ner, or any member of your spouse’s
                                                                              family to represent you — even if
                                  Here’s a guide to help you choose the       you’re on good terms with them.
                              best possible advisors to support you           Aside from the obvious conflict of
                              with your divorce. At the end of this ar-       interest, you’ll likely create enemies
                              ticle, you’ll also find a list of useful        and spark a family feud before your
                              questions to ask these professionals            divorce settles.
                              when you interview them.
                                                                            Choosing a Mediator
                              Choosing a Lawyer
                                                                               With mediation, you, your spouse
                                  Choosing a lawyer may be the most         and a third-party mediator work together
                              important decision you’ll make during         to negotiate how to live successful lives
                              your divorce. As in any profession, there     apart. Mediation can save time and
                              are good lawyers and bad lawyers. It’s        money, and is usually less emotionally
                              up to you to do your homework and to          damaging than a full-blown court battle.
                              ask the right questions to determine          Together, you and your spouse work out
                              which group your lawyer belongs to (a         an agreement you can both live with
                              list of questions to ask a potential lawyer   from the same side of the mediation
                              is provided at the end of this article).      table, rather than opposing sides of the
                              Look for a lawyer who:                        courtroom.
                              • Practices family law. A lawyer who
                                  specializes in taxation isn’t going to       Mediation isn’t an option in all di-
                                  be much help to you.                      vorce cases. However, when both par-
                              • Has experience. Make sure your              ties are willing to look at the issues
                                  lawyer has practiced family law for a     instead of the emotions that cloud the is-
                                  while, and find out if they have writ-    sues, mediation is worth a try. Statistics
                                  ten books or lectured/mentored other      show that when a case is negotiated
                                  family lawyers.                           through a mediator, the parties tend to
                              • Is a skilled negotiator. If your case       stay out of court in the future. Another
                                  can be settled without a protracted       benefit of a mediated settlement is that


6 | Divorce Guide
you and your spouse will learn power-        can also ask your personal accountant (if   separately), and everything else from the
ful new communication techniques,            you have one) to suggest someone who        contents of a safety deposit box to the
which is particularly important if you       has a matrimonial background, but be        cars. And while you’ll be dealing mainly
have children or share business interests.   sure to check his/her prior experience.     with “big ticket items,” if something is
                                                                                         very important to you, make sure it’s on
   Mediation doesn’t normally elimi-         Choosing a Divorce Financial                your list. If a business is involved, bro-
nate the need for a lawyer, and your         Specialist                                  kerage statements or corporate minute
lawyer will have to approve any agree-                                                   books will also be required.
ments made by you and your spouse be-            When your marriage has dissolved,
fore they become legally binding.            and even during the divorce process it-        Basically, your accountant or divorce
However, the mediation process can           self, you may want to employ a finan-       financial specialist needs to see any
speed up negotiations because you and        cial expert who has been specially          major paperwork that involves the trans-
your spouse communicate directly in-         trained in issues that pertain to separa-   action of money for both you and your
stead of through a “broken telephone”        tion and divorce.                           spouse.
chain from your spouse, to your
spouse’s lawyer, to your lawyer, and            Certified Divorce Financial Analysts     Choosing a Therapist
then finally to you. Many family law         (CDFAs™) tend to be financial planners
practitioners are also trained mediators,    or accountants who have completed the          A therapist can help you deal with the
and so finding a mediator may simply be      Institute of Divorce Financial Analyst’s    various emotions that could get in the
a question of asking your lawyer about       training. Equipped with the specific        way of negotiating a divorce settlement.
his or her qualifications.                   training on handling divorce cases, a       During your separation, you may expe-
                                             CDFA can analyze settlements in the         rience grief, anger or depression. Also,
Choosing an Accountant

    A Certified Public Accountant (CPA)
can handle many of the financial matters               When you first meet the divorce professional
of your case. His or her responsibility is
to calculate you and your spouse’s net
                                                            you may hire, you should be prepared
worth, and to produce figures that are                      with some well thought-out questions.
agreeable to both you and the courts.
There are a number of different accred-
itations given to accountants, and you’ll
find these designations after their name.    context of your long-term financial situ-   until you achieve an “emotional di-
Wading through the differences between       ation and inform you of the ones that ap-   vorce,” you won’t truly be free to create
                                             pear fair and equitable on the surface,     a fulfilling new life. A qualified thera-
someone who is a CFE (Certified Fraud
                                             but will not stand the test of time. A      pist can help you work through the is-
Examiner) or a BCFE (Board Certified
                                             CDFA can also reduce future uncer-          sues that are holding you back and
Forensic Examiner), or a member of the
                                             tainty by forecasting the financial im-     keeping you stuck in the past.
ASA (American Society of Appraisers),
                                             pact of alternative settlement proposals.
or a member of NACVA, (National As-          For instance, a CDFA can tell you what          However, the process of finding the
sociation of Certified Valuation Accred-     the financial consequences will be of       right therapist can be a frustrating one.
itation) may seem a daunting task, but       keeping your home instead of selling it.    Anyone can call him or herself a “ther-
by doing a little research, you’ll come to   A CDFA can work with your lawyer and        apist” regardless of background or train-
understand what you need to know. If         provide the financial data required to      ing, so do your due diligence to find
you think your spouse is hiding assets,      support your case.                          someone competent. A therapist with an
a forensic accountant could be helpful.                                                  “MD” after his/her name is a psychia-
If you and/or your spouse own your own          Additionally, a CDFA™ can help           trist; one with a “Ph.D.” is a psycholo-
one or multiple businesses, a business       you with budgeting, or assist with tax,     gist. If you see the letters “MSW,” it
valuator will be important to value com-     estate, or retirement planning. He or she   means this person has a master’s degree
pany assets and also to value company        will help you organize your financial fu-   in social work, while an “LCSW” is a
goodwill.                                    ture by proposing a personalized plan       Licensed Clinical Social Worker. If pos-
                                             with a time horizon, and a solid invest-    sible, choose a therapist who specializes
   You could ask to be introduced to an      ment strategy to help you move towards      in marriage and divorce.
accountant through your lawyer. These        financial stability after your divorce.
two members of your divorce team may                                                        Setting realistic limits and goals is an
have to work in tandem from time to            You’ll also need valuations or other      important part of the therapist’s services.
time, so it’s beneficial to find someone     paperwork detailing property owned          Good therapists are willing to listen, but
with whom your lawyer is familiar. You       by you and your spouse (together or         they don’t always have to agree with


                                                                                                             Divorce Guide     |7
you. A good therapist will encourage
questions that indicate you’re interested
in your own recovery. As you glance
around the therapist’s office, try to imag-
ine yourself coming here every week for
several months.

   Remember, it can take three to five
sessions before you have a clear idea of
whether this therapist is the right one for
you. However, if after this period you
don’t feel right about the relationship,
then trust your inner voice, thank the
therapist for his/her time, and interview
the next candidate.

Questions to Ask when Inter-                      you think your case is extremely sim-         an associate, or a combination of
viewing Divorce Professionals                     ple, but your spouse’s lawyer buries          senior and junior lawyers and parale-
                                                  your lawyer in paperwork, you can             gals?
   When you first meet your the divorce           expect your costs to increase.              • Should I consider mediation?
professional you may hire, you should         •   What do you think the outcome will
be prepared with some well thought-out            be? Remember, you’re looking for            Questions Specifically for Your
questions. Here are some suggestions of           truthfulness here, not to be told a         Prospective Accountant, Finan-
what to ask:                                  •   happy story.                                cial Advisor, Mediator, and
• What is your training, experience,          •   If your spouse has retained profes-         Therapist:
   credentials and affiliations?                  sionals of his or her own (and you
• How long have you been working in               know who they are), ask if they are         • How many times have you been to
   this field?                                    familiar with any of them.                    court? These professionals may be
• Do you serve divorcing people ex-           •   How long will this process take?              testifying on your behalf, so you
   clusively? If not, what percentage             Again, the answer will be an approx-          want someone who has experience in
   of your work involves divorcing                imation.                                      the courtroom. If possible, find out
   people?                                    •   What are my rights and obligations            how these cases turned out.
• How much direct experience do you               during this process?                        • Have you worked with many law-
   have dealing with cases like mine.         •   What are your hours? Do you work              yers? Ask for a few references, and
   This is an especially important ques-          any evenings or weekends?                     call them.
   tion if there are aspects that make        •   How accessible is your office (close
   your divorce unique.                           to parking, public transport; wheel-           Indeed, the path of divorce is typi-
• What is your approach? Do you have              chair accessible; etc.)? Is it located in   cally a challenging one on many levels.
   any biases? We all have certain view-          a safe neighborhood?                        The decisions you make now will affect
   points, which cloud our judgment,          •   What happens next? Do I need to do          your long-term future, and that of your
   and professionals are not exempt. If           anything? And when will I hear from         children. By using the guidance and
   you have children, you should ask if           you?                                        questions above to choose the right
   this professional has any strong                                                           professionals, you’ll not only make your
   views about the role of mothers or fa-     Questions Specifically for Your                 divorce easier, less expensive, and less
   thers, or about the care of children.      Prospective Lawyer:                             stressful — you’ll also empower your-
• Will you keep our communications                                                            self to successfully start your new life
   confidential? Can I call you between       • What percentage of your cases go              after divorce.
   scheduled meetings? If so, do you            to trial? You may want to choose a
   charge for these calls?                      lawyer with a low percentage here: a             Diana Shepherd is the former
• Do you require a retainer, and if so,         good negotiator who can settle your           Editorial Director of Divorce Magazine.
   what is it? Is this fee refundable?          case without a long, expensive court          Josh D. Simon is a writer for Divorce
   What is your hourly fee? What are            battle. A good trial lawyer may be            Magazine.
   your payment terms?                          necessary if every indication is that
• Approximately how much will your              nothing could possibly be settled out-
   services cost? The professional will         side of a courtroom.                           For more articles on working with
   only be able to provide an estimate        • Are you willing and able to go to              your divorce lawyer, visit www.
   based on the information you provide         court if this case can’t be settled any        divorcemag.com/articles/Divorce_
   and your realistic estimation of how         other way?                                     Lawyers.
   amicable you and you spouse are. If        • Who will be handling my case: you,


8|   Divorce Guide
Stress-Busting Tips
Divorce is one of the most stressful life events
you can experience, but there are some valuable
ways — both physical and mental — you can
reduce your anxiety levels.
By Diana Shepherd



   COUNT TO TEN. Find a quiet, com-          the ability to reduce
fortable place to sit — perhaps a park       stress.   Make     your
bench during your lunch break, or a          walk extra-relaxing by
favorite chair at home. Don’t lie down       listening to a soothing
unless you’re certain you won’t fall         audiotape and/or by
asleep. Start to take slow, deep breaths.    taking your walk in
Think “one inhale” as you breathe in,        pleasant surroundings.
and “one exhale” as you breathe out;         Keep your eyes open,
you’ll count the next breath as “two in-     though: you don’t want
hale, two exhale,” up to “ten inhale, ten    to walk into traffic or
exhale.” Then start again from “one in-      other pedestrians!
hale.” If you lose your place, start again
from “one inhale.” The counting helps           WRITE       IT    OUT.
to focus and quiet your mind, shutting       You’ve probably heard
out intrusive, stressful thoughts. Con-      about the power of journaling: writing
tinue counting your deep breaths for         down your thoughts, feelings, and expe-      sounds with music. Check out the “Re-
10 minutes once or twice a day.              riences on a daily basis can help to un-     laxation” section under “Discography”
                                             burden both your mind and body. So for       at www.solitudes.com.
    LAUGH IT OFF. From a tiny giggle to      the next couple of weeks, try to spend at
a side-splitting guffaw, laughter can help   least 20 minutes a day writing in a jour-       PRACTICE YOGA. Hatha Yoga can
to reduce stress. Research has found that    nal. Jot down the details of a stressful     help you release built-up tension and
laughter initiates the release of beta-en-   day or an encounter with your ex.            stress, strengthening the body while
dorphins — the same “feel-good” natu-        You’re not looking for prizes for style or   calming the mind. Once you’ve learned
ral relaxants that are released during       grammar here: the point is to get as         the poses (preferably from a qualified
exercise. Endorphins also block cortisol,    much into your journal and off your          instructor), all you need is a quiet,
a hormone that can affect your blood         chest as quickly as possible. You can        comfortable place and about 20-40
pressure, immune system, and weight.         keep your journal(s) for future reference    minutes each day to breathe and stretch
Rent a comedy video or go see a funny        — so you can see how far you’ve come         your stress away. “People who practice
movie; read a book that has you in           — or you can burn them as part of a          yoga and meditation report they have
stitches; subscribe to your local comedy     “letting go” ritual.                         more self-confidence, sleep better and
TV station; and hang out with people                                                      eat better and that their stress and anxi-
who make you laugh. Or pick up a copy           TUNE IT OUT. Slow music has been          ety levels are greatly reduced,” says
of Health, Healing, and the Amuse Sys-       shown to ease anxiety as well as lower       Helen Goldstein, director of The Yoga
tem: Humor as Survival Training by           blood pressure and heart rate. Try           Studio in Toronto. “And 20 minutes of
humor-research pioneer Dr. Paul              something from the Solitudes collec-         meditation has the positive effects of
McGhee at www.laughterremedy.com.            tion; some of their titles feature only      two-to-three hours of sleep.”
                                             nature sounds (waterfalls, babbling
   JUST WALK AWAY. Any exercise,             brooks, gentle surf breaking on the             Diana Shepherd is the former Editor
even a leisurely 20-minute stroll, has       seashore), and others combine nature         of Divorce Magazine.

                                                                                                              Divorce Guide    |9
  How to
   Work
 with Your
  Divorce
  Lawyer
                                                                                       •
Tips for keeping your legal fees down and getting the best                                 Financial information. What assets
                                                                                           and debts did each of you bring into
possible outcome.                                                                          the marriage? What are your in-
                                                                                           comes and what are your expenses,
By Diana Shepherd, with notes from Josh D. Simon                                           jointly and individually? What are
                                                                                           the names and addresses of your
                                           •
                                                                                           employers? How much money do
        ou and your lawyer will be-            Why are you seeking a divorce?

Y       come partners, for better or for
        worse, during and perhaps for
years after the divorce process. How
                                           •   What caused your breakup? If
                                               you’re secretly hoping for reconcil-
                                               iation, then you and your lawyer are
                                                                                           both of you have invested: in the
                                                                                           bank, the stock market, etc.? Has ei-
                                                                                           ther of you invested in insurance or
                                                                                           a pension plan? What property do
well your partnership works can have           working towards different goals.
an enormous effect on your divorce and     •   Personal data about you, your               you own? Was the property pur-
how much you’ll have to spend in legal         spouse, and your children (if any).         chased before or after the marriage?
fees. Here are some tips on how to             Write down your names; your home            Do you have a mortgage? Prior
work with your divorce lawyer.                 and work addresses and telephone            to seeing your lawyer, create a
                                               numbers; your ages and places of            budget detailing how much you
What Your Lawyer Needs to                      birth; your Social Security or Social       spend every month on items such as
Know                                           Insurance Numbers; your states of           housing, food, clothing, personal
                                               health, both mental and physical;           grooming, gifts, vacations, etc. If
   Once you’ve chosen a lawyer, you’ll         your Green Card(s) and immigration          you have children, make sure you
need to provide information. When              papers (if applicable).                     include their expenses.
your lawyer requests information, re-      •   Facts about your marriage. When         •   Legal documents. Bring copies of
spond as quickly, completely, and con-         and where did you get married? Did          prior or pending lawsuits, bankruptcy
cisely as you can; don’t write a 24-page       you sign a prenuptial agreement? If         suits, judgments, and garnishments.
document when all that was required            so, bring a copy. Have either of you        Your divorce goals. Be very spe-
was a “yes” or “no.” The following             been married before? Will there be          cific about your goals in terms of
checklist will give you an idea of what        issues involving your children, such        realizing your future; make sure
you may need to disclose:                      as custody or access?                       your short-term goals for property,

10 | Divorce Guide
   other assets, custody, visitation, and         If you don’t abide by these tips, your   from each other. Ask for a written
   support are consistent with that           lawyer may want to quit your case.           agreement that details the terms of
   future.                                    This may also happen if you don’t            your lawyer-client relationship. If he or
                                              communicate properly, if you continu-        she won’t provide one, find another
What Your Lawyer Expects                      ally don’t follow the lawyer’s advice,       lawyer.
from You                                      or if you don’t pay your legal bills. But
                                              if you’re cooperative and reasonable,           After learning about your case, your
   Your lawyer hopes you’ll be calm,          it’s more likely that your lawyer will       lawyer should create a strategy. Be
businesslike, and well prepared. Ideal        trust you and work hard on your behalf.      aware that this plan may change along
clients can control their emotions, are                                                    the way, depending on what your ex
organized, willing to work together               However, your lawyer may keep            and his or her lawyer does.
with the lawyer, and listen to their          representing you even if you inadver-
lawyer’s advice.                              tently annoy him or her — if only                Your lawyer should clearly explain
                                              because you’re still paying him or her       all your options, and offer advice re-
    Your lawyer will expect to be paid        to work for you. Or maybe your lawyer        garding the best paths to follow, but re-
on time and in full. If your financial sit-   is just too polite. If you detect impa-      spect your wishes if you strongly
uation is bad, your lawyer may be able        tience or weariness in your lawyer’s         disagree with a suggested course of ac-
to create some kind of payment plan. If       tone or body language, consider              tion. If you find yourself in constant
you’re broke because your ex cleaned          whether you’re burdening him or her          disagreement with your lawyer, either
out the bank account, your lawyer can         with too many complaints about your          you’ve chosen the wrong person or
file motions asking the court to grant        spouse, or whether you’re wasting time       you’re being unreasonable. Consider
temporary orders for child or spousal         by asking a lot of obvious questions or      your motivations and actions to see if
support, custody, payment of your             by venting your frustrations. It’s also      you’re refusing your lawyer’s advice
                                                                                           for purely emotional reasons.

                                                                                               Even a good divorce lawyer will
               The optimal relationship with                                               sometimes have bad news for you: that
       your divorce lawyer is a two-way partnership.                                       your spouse won’t budge on an impor-
                                                                                           tant issue; that you’ll have to give him
                                                                                           or her money or other assets; or simply
                                                                                           that your expectations are unrealistic,
lawyer’s fees, etc. And if you suspect        possible that you did something to hurt      illegal, or not financially feasible. Ex-
your divorce might get nasty, ask your        your case strategy, such as mentioning       pect to feel frustrated or disappointed
lawyer about filing orders to protect         something to your spouse (or your            from time to time as your divorce
you and/or your kids — financially and        spouse’s lawyer) that should have been       progresses, but don’t take it out on
physically.                                   kept secret. Perhaps your last check to      your lawyer! He or she can’t always
                                              the lawyer bounced, or maybe you             pull a great solution out of his or her
   To get the best service from your          were rude or unprofessional to one of        metaphorical hat.
lawyer, it’s essential to be a good client.   the firm’s paralegals or secretaries.
Here’s how to gain your lawyer’s                                                              You should expect your lawyer to
respect:                                         If you think you may have annoyed         return phone calls reasonably promptly
• Don’t call your lawyer outside of           or angered your lawyer, ask if this is the   (24 hours is reasonable if he or she
   work hours unless it’s an emer-            case. If you have done something             isn’t on vacation), and to consult you
   gency.                                     wrong, apologize for it; if there has        before taking any major actions.
• Don’t burden your lawyer with your          been a misunderstanding, clear it up im-
   emotional issues; hire a therapist for     mediately. It’s important that you and          Finally, if you want to ensure that
   that.                                      your lawyer maintain a strong, trusting      your divorce agreement reflects your
• Always tell your lawyer the truth,          relationship in order for you to get the     goals — and doesn’t cost you an arm
   even when it’s unpleasant or unflat-       best possible representation — and to        and a leg — then stay involved with
   tering to you.                             achieve the best possible outcome.           the process, and answer your lawyer’s
• Be realistic. Don’t expect your                                                          requests promptly and honestly.
   lawyer to behave like the heroic           What You Should Expect from
   lawyers on TV or in John Grisham           Your Lawyer                                     Diana Shepherd is the former Edi-
   novels.                                                                                 torial Director of Divorce Magazine.
• Don’t blame your lawyer for the                From the day you hire your lawyer,        Josh D. Simon is a writer for Divorce
   system or expect him or her to             you both should have a clear under-          Magazine.
   change it.                                 standing of what you need and expect

                                                                                                             Divorce Guide    | 11
   Getting Settled                                               By By Nancy Kurn, CPA, JD, LLM, MBA, CDFA ™




                                                                                         What you need to know before
                                                                                       creating a settlement agreement.

         ou’ve sat down with your            feelings of anger or loss, so find a coun-    your settlement agreement (unless it’s

Y        spouse and hammered out what
         you think is a pretty great set-
tlement: you get to keep all of the prop-
                                             selor or a support group to help you work
                                             through your emotions so you can be as
                                             clear-headed and as practical as possible
                                                                                           something that you’re going to litigate
                                                                                           in court).

erty you really wanted, and your ex gets     during negotiations with your spouse.            You don’t necessarily have to list
stuck with all of the debt. But whether      Some couples will be able to settle all is-   every single personal possession in your
or not that agreement will hold up in        sues; others will be able to settle some      settlement agreement, but you should list
court depends on a number of factors,        issues and have to litigate the rest.         personal items that are important to you.
including how it is worded, whether or                                                     You should also list financial assets, in-
not there was full financial disclosure by       This article will cover property issues   cluding retirement assets and real estate.
both parties, and possibly whether both      only; your settlement agreement will
parties had independent legal counsel.       need to thoroughly address spousal or            Your agreement should state who
                                             child support as well as custody and vis-     gets each asset or how the asset or
   That being said, you should make          itation issues. As always, you should         the proceeds from its sale will be
every effort to negotiate your settlement    consult with your lawyer and/or media-        divided. Let’s take a look at the most
agreement rather than fight over every       tor to make certain your best interests,      common categories.
item in court. Such agreements have sev-     and those of your family, are protected.
eral benefits over a judge’s ruling,                                                       Financial Assets
including: they take less time; they re-         Your settlement agreement should be
duce the financial and emotional costs;      very comprehensive — particularly with           Financial assets include cash, sav-
and the parties are more likely to abide     regard to how the property is divided.        ings accounts, checking accounts,
by the terms of the agreement.               Once you sign an agreement regarding          Certificates of Deposit, money-market
                                             property division, it cannot be changed       accounts, stocks, bonds, Real Estate
   If you’re able to put aside your emo-     unless both of you agree to the changes       Investment Trusts (REIT), mutual
tions and focus on the issues at hand,       or unless there is some legal basis, such     funds, and savings bonds. These assets
your chances of negotiating a settlement     as fraud, for setting aside the agreement.    may be more important to the
are extremely high. A courtroom is sim-      It’s up to you to make sure that your         non-working or lower-income-earning
ply not the right venue to express your      lawyer doesn’t leave any assets out of        spouse. He or she may need to use these


12 | Divorce Guide
assets to cover some of his or her            take the percentage that is awarded and      for each person. Not all pension plans
living expenses.                              roll it over to an IRA or perhaps main-      permit division of the pensions. In any
                                              tain it as a separate account in the same    case, it is still important to have the pen-
Retirement Assets                             plan. The agreement should specify           sion valued properly: dividing one
                                              the percentage that you and your spouse      pension into two is not a way to avoid
    Not all assets have the same tax          will receive.                                the cost of a valuation (or to avoid argu-
consequences; retirement assets are gen-                                                   ing over which value is the right value
erally before-tax assets. This means that        IRAs or Roth IRAs are also easily di-     for the pension).
in order to access the money, you have        visible. Remember that distributions
to pay income tax on any distributions        from Roth IRAs will generally not be            Federal government pensions qualify
you receive. In some cases, you may also      taxed, while distributions from IRAs will    for division under the Pension Benefits
have to pay a penalty on the distribution     generally be taxed. As a result, $10,000     Division Act (PBDA). This Act provides
in addition to any income tax that you        from a Roth IRA is probably a better         that the member may transfer a portion
pay. For example: Mary suggested to           asset than $10,000 from an IRA.              of the value of the pension to a retire-
Gus, “You keep your retirement assets,                                                     ment vehicle for the spouse. This is
valued at $100,000, and I’ll take the             In Canada, there are two basic types     known as the Maximum Transferable
money-market account, valued at               of pension plans: “Defined Contribution      Amount (MTA).
$100,000.” Gus agreed because it was an       Plans” and “Defined Benefit Plans”. The
equal division of the assets. However,        first type defines who is to make the con-       The Canada Pension Plan (CPP)
when Gus retires in 2009, he will pay tax     tributions to fund the plan, how much        recognizes that married persons, com-
on the distributions. So if Gus paid tax at   they are to contribute, and when they are    mon-law couples, and same-sex partners
a rate of 25%, then he would end up with      to make the contributions. The second        share in the building of their assets and
only $75,000 versus the $100,000 that         will also specify who is to make what        entitlements, including their CPP cred-
Mary received.                                contributions, how much they are to con-     its. When a relationship ends, CPP
                                              tribute, and when. However, a defined        credits built up by the individuals during
    In the U.S., there are many different     benefit pension plan will also have a        the time they lived together can be com-
types of retirement assets, including de-     formula for determining the amount of        bined and then divided equally between
fined benefit plans, defined contribution     annual pension that the member has           them by means of “credit splitting”. As a
plans, IRAs, and Roth IRAs. It is impor-      earned. It is the projection of these        result, the person with fewer credits —
tant that you determine how defined           future pension payments (which are not       that would normally be the lower income
benefit plans, such as pensions, will be      at all related to the amount of contribu-    earner — receives some credits earned
divided between you and your spouse.          tions that have been made) that must         by the other — normally the higher in-
This is generally spelled out as a per-       be valued.                                   come earner — so that they both have
centage of the retirement benefit at the                                                   the same number of credits accumulated
time of the divorce. It is also imperative       Depending on the type of plan and         during the marriage or other relationship.
for the agreement to state if the em-         which province you live in, a portion
ployee’s spouse will be entitled to           of the pension (usually the portion             You should be aware that there is
survivor’s benefits if the employee dies.     accumulated during your marriage) may        more than one way to value a pension;
It is important to make sure that the non-    be subject to division like any other        if the amounts are significant, you
employee in fact qualifies for survivor       family asset. If one or both spouses         should consider having an expert valua-
benefits; otherwise, he or she may be         have Registered Retirement Savings           tion done.
better off with another asset.                Plans (RRSPs), the portion accumulated
                                                                                           Employee Benefits

                                                                                              In addition to retirement plans, many
          Make every effort to negotiate your                                              employers provide other fringe benefits
                                                                                           and incentives to their employees. These
            settlement agreement rather than                                               benefits include year-end bonuses, ac-
                                                                                           crued vacation time, accrued sick time,
                                                                                           health insurance, life insurance, disabil-
                fight over every item in court.                                            ity insurance, expense accounts, stock
                                                                                           options, and more unusual benefits such
                                                                                           as Phantom Stock, Stock Appreciation
                                                                                           Rights, and Restricted Stock.
   Defined contribution plans include         during marriage will also be subject
401(k) plans, profit-sharing plans, sim-      to division.                                    Some of these benefits may be
ple IRAs, and other types of contributory                                                  included in your list of assets; other
plans. Generally, these can be divided           Some people will want to divide the       benefits may be included as income,
today, and the non-employee spouse can        pension into two separate pensions: one      and some may not be included at all.


                                                                                                              Divorce Guide     | 13
Determining if a benefit should be                and note how they are going to be di-       as well as any business property. The
treated as a marital asset, income, or            vided. This would include big-ticket        properties should be listed, and the set-
nothing at all can be very subjective. Dif-       items, such as cars, boats, and motor       tlement agreement should address how
ferent jurisdictions and judges may view          homes, as well as items such as jewelry,    they are going to be divided.
the benefits differently. As a rule of            furniture, photos, and personal papers.
thumb, if the benefit is guaranteed, then                                                        If the property is going to be sold, the
it should be included as an asset or as in-          Keep the value of these assets in per-   following issues need to be addressed:
come. A year-end bonus could arguably             spective — and recognize when it’s time     • Who is going to pay the expenses
be an asset, an income item, or nothing at        to give up the fight. We’ve all heard of       until the property is sold?
all if it is not guaranteed. For example:         those cases where parties spend thou-       • How will the proceeds be divided?
Barbara and Jeremy were married for 15            sands of dollars fighting over an asset     • If one spouse pays the expenses, will
years. Jeremy, the employee-spouse, re-           that’s worth less than $100.                   he or she be reimbursed, from the
ceived a bonus every year. Barbara could                                                         proceeds, before they are divided?
certainly make a reasonable argument                 Each spouse should keep copies of
that it is an asset or income for purposes        joint tax returns. We recommend that        Debts
of calculating child support and alimony.         you keep at least the past five years; in
Vested stock options would also be an             addition, you will need records to calcu-      Generally, the person who takes the
asset; with the changes in the market,            late the cost basis for any assets that     property will be expected to pay the
they may not have any value, while un-            you keep.                                   mortgage or debt related to the property.
vested stock options, on the other hand,
                                                                                              Does this mean that the other spouse has
may not be an asset.                              Real Estate                                 no financial obligation for a joint debt?
                                                                                              Absolutely not. Unless the spouse who
Personal Property                                     Real estate includes your marital
                                                  home and any other homes, vacation          takes the property refinances the mort-
   List your personal possessions, par-           properties, timeshares, and rental prop-    gage, both spouses will still be obligated
ticularly those that are important to you,        erties — commercial and residential —       to pay the debt. The divorce decree can-
                                                                                              not terminate your financial obligation to
                                                                                              your creditor. For example, Bob and
   TABLE ONE:                  Equity         Value         Bob          Amy                  Amy are dividing their assets as shown
                                                                                              in “Table One”.
   Cash and Checking                          $13,000       $13,000
   Mutual Funds                               $17,000       $17,000                              After the divorce, Bob would be li-
   Amy’s Car                                  $ 5,000                    $ 5,000              able for the car payment and Amy would
                                                                                              be liable for the mortgage. If either failed
   Bob’s Car                   $25,000                                                        to make these payments, the other
   Debt on Bob’s Car           ($10,000)                                                      spouse would still be liable. But if Amy
                                                                                              or Bob refinance after the divorce, the
               Car Equity—                    $15,000       $15,000
                                                                                              other spouse will no longer be liable for
   Home                        $200,000                                                       the debt.
   Mortgage                    ($160,000)
                                                                                                 Requiring the other spouse to refi-
            Home Equity—                      $40,000                    $40,000              nance after the divorce is something that
   Total Value                                $90,000       $45,000      $45,000              should be put in the settlement agree-
                                                                                              ment. They could, for instance, allow a
                                                                                              certain time period to refinance. If they
                                                                                              do not refinance or do not qualify to re-
   TABLE TWO:                                 Value         Mike         Julie                finance, then the asset could be sold and
   Home (Equity)                              $ 40,000                   $ 40,000             the loan could be paid off with the pro-
                                                                                              ceeds from the sale.
   Cash and Checking                          $     3,000                $    3,000
   Mutual Funds                               $     7,000                $    7,000               If only one spouse is obligated on the
                                                                                              debt during the marriage, then the other
   Mike’s Business                            $150,000 $150,000                               spouse cannot be held liable. This occurs
   Total Value                                $200,000 $150,000 $ 50,000                      most frequently with credit-card debt.
                                                                                              However, if you have a credit card that
   Property Settlement Note                                 ($50,000) $ 50,000                is a joint debt, then just like the mort-
                                                                                              gage, if one spouse is responsible for
   Revised Total                                            $100,000 $100,000                 paying the joint credit-card debt pursuant
                                                                                              to the terms of the settlement agreement,

14 | Divorce Guide
this does not mean that the other spouse         To equalize the division of assets,       payments are made and that she remains
is no longer responsible for the debt.        Mike should pay Julie an additional          the beneficiary. Otherwise, she is at risk
Unfortunately, both spouses will remain       $50,000. This can be structured as a note    if he lets the policy lapse or changes
liable to the creditor. If one spouse re-     payable to Julie in the amount of $50,000    the beneficiary.
fuses to pay, then the other spouse will      at an agreed-upon interest rate. If Mike
have to pay off the debt. If you can af-      and Julie agree that the note would be       Other Assets
ford it, paying off credit-card debt with     payable over five years at a 5% interest
liquid assets is the best way to deal with    rate, then the annual principal and inter-      Some other assets to address in the
unsecured debt.                               est payments would be $11,549.               settlement agreement include: Frequent
                                                                                           Flyer Miles, lottery winnings or other
Closely Held Business                            A property settlement note has            prize winnings, club dues and annual
                                              some significant drawbacks, however,         membership fees, inheritance and gifts,
    A closely held business can be in         including:                                   and trusts naming one spouse as a cur-
the form of a sole proprietorship, corpo-        If the agreement isn’t followed, it be-   rent beneficiary.
ration, general or limited partnership,          comes another issue to fight over.
or limited liability company. Before one         What happens if Mike doesn’t pay?            Keep in mind the assets listed here are
spouse agrees to take a business interest,    • Should Mike pay interest on the note?      not by any means exhaustive; you and
he or she has to make sure there are             If the note is unsecured, it would        your spouse may have assets in addition
no restrictions on owning the interest.       • probably be discharged in bank-            to those listed in this article. They can
There could be legal or contractual re-       • ruptcy.                                    make a huge difference in your post-
strictions on which spouse could own the      • What happens if Mike dies or be-           divorce life, so take the time to list them
business interest.                               comes disabled before the note is paid    carefully and discuss them fully before
                                                 in full?                                  you settle things, once and for all.
   If the business, for instance, is a        •
professional corporation, as defined by       Life Insurance                                  Nancy Kurn is the Director of Educa-
state or provincial law, then one spouse                                                   tional Services for the Institute for
may be legally restricted from maintain-         Some life-insurance policies have         Divorce Financial Analysts (IDFA) —
ing an ownership interest. For instance, if   cash value. This means that the owner        the premier national organization dedi-
Joe is a physician and Barb is an ac-         could borrow money from the policy or        cated to the certification, education, and
countant, in many states or provinces,        trade the promise to pay a future sum at     promotion of the use of financial profes-
only Joe could own his medical practice       death for the current cash value, less any   sionals in the divorce arena. For more
and only Barb could own her account-          costs or charges.                            information about how a Certified
ancy practice. Another restriction may                                                     Divorce Financial Analyst (CDFA) can
exist if there is a liquor license or taxi-      Other policies, such as term insur-       help with the financial aspects of your
cab medallion that is only transferable       ance, have no cash value. Term insur-        divorce, call (800) 875-1760, or visit
with government approval.                     ance may still be valuable, though,          www.InstituteDFA.com.
                                              particularly if the insured person is now
   A “buy-sell” agreement is an exam-         uninsurable.
ple of a contractual restriction that may
preclude a transfer to a spouse. If the          The settlement agreement should ad-
“non-owner” spouse is awarded the busi-       dress who will own the existing life in-
ness interest in the divorce, then the        surance policies. Naming an ex-spouse
spouse may be forced to sell the business     or child as the irrevocable beneficiary of
interest at a substantial discount. For       a group policy is minimally effective,
example: Joe owns 25% of a business           since the designation can be changed
that has a total value of $100,000; his       unilaterally by the employee when the
share is valued at $25,000. If the buy-sell   carrier changes, or indeed at any other
agreement requires Barb to sell her in-       time. If the non-insured spouse is sup-
terest at 50% of the value, and if she        posed to be the beneficiary, then the best
were awarded the stock in the divorce,        way to protect his or her interest is to
she would be required to sell her interest    have the non-insured spouse own the
for $12,500.                                  policy. Using the above example, if Mike
                                              owns a policy and is the insured, and
Property Settlement Note                      they agree that Julie should be the bene-
                                              ficiary, then he should transfer owner-
   A property settlement note is gener-       ship of the policy to Julie. She should
ally used to equalize the assets. For         verify that she is the beneficiary of the
instance, Mike and Julie have the             policy. They can structure it so that he
following assets (shown in “Table Two”        pays her the premiums as alimony.
on the previous page).                        That way, she can be sure that the
                                                                                                              Divorce Guide    | 15
Managing ANGER                                                                                                By Jane Nahirny
         nger is a very familiar emotion      Divorce-related anger can
A
                                                                                           will ultimately leave you and the family
         for all of us, and in healthy re-    literally make you crazy,                    resources drained dry.
         lationships, it can be an over-
whelmingly positive force in our lives.       causing you to say and                           Using the court as a venue to vent
Healthy anger can tell us if there’s          do things you’d never                        your anger is a bad idea for a couple of
something wrong, painful, or threaten-        dream of if you were                         key reasons: it’s the wrong venue, and
ing that we need to take care of. It helps                                                 it’s very expensive (financially and
us protect ourselves and to know when
                                              thinking clearly. Even                       emotionally). Unfortunately, the legal
people are crossing our boundaries.           though it’s a normal part of                 divorce process itself tends to add fuel to
                                              the healing process, anger                   the fires of anger. Dividing property
    But for couples who are going                                                          (some of which has great sentimental
through separation or divorce, anger is
                                              can become a destructive                     value) and trying to prove your case for
often anything but healthy. In her            force in your life.                          custody and/or support can be very
informative book The Good Divorce,                                                         emotionally charged because these
Dr. Constance Ahrons defines divorce-         or physical harm it will inflict on their    issues underline what is being lost or
related anger as “an extreme rage,            ex-spouse (even simply being a nuisance      changed because of your divorce. Some
vindictiveness, and over-powering             will do “in a pinch”) without seeing the     degree of upset is inevitable, but driving
bitterness that is felt when a love rela-     injuries they may be inflicting on inno-     yourself alongside your ex into bank-
tionship is ending. It is a special kind of   cent victims. Using children as human        ruptcy is truly cutting off your nose to
anger that usually hasn’t been experi-        shields in the divorce battle is a common    spite your face.
enced before.”                                way to fan the flames of divorce anger.
                                              Many scenarios are possible, all of which       So how can you cope with this new
    When anger is coupled with divorce,       are damaging and punitive to the chil-       and intense anger? The key lies in
it’s often used as a misguided means of       dren: the custodial parent withholds vis-    understanding its roots and in finding
hanging onto a failed marriage. After all,    itation from the non-custodial parent; the   constructive ways to express the hurt,
for many people, a bad relationship is        non-custodial parent refuses to pay child    disappointment, and loss that both you
better than no relationship at all. Divorce   support; the custodial parent “forgets” to   and your former spouse are feeling
anger allows people to punish their ex as     pick the children up; or the non-custodial   now as you proceed through separation
often as possible, all the while maintain-    parent is hours late in bringing them        and divorce.
ing an ongoing (bitter) relationship with     back. “We forget what’s best for the chil-
him/her. It’s a situation that leaves both    dren because we are so intent on getting        Here’s some advice about coping
partners in divorce limbo, a perilous         that other person,” writes Ahrons. But       with your own and your ex-spouse’s
situation that obstructs growth and           “getting back through the kids is hitting    divorce-related anger.
self-awareness. If you wish to move           below the belt.”
forward, you’ll need to learn to handle
your anger.                                       Divorce anger is also often expressed    If You’re Angry:
                                              through the legal process itself. Here,
   Some people hold onto their anger so       it’s very important to remember that             Write it out. Work through your
tightly — stoking the fires on a daily        your lawyer is your advocate, not your       anger by keeping a journal or by writing
basis — that their rage takes over their      therapist or your best friend. Express-      letters you don’t mail. By doing so, you
whole lives, coloring and informing all       ing anger to your ex-spouse through          can release your anger without engaging
their thoughts and actions. They weigh        the legal process invariably leads to        another person. Also, it is possible that
every action to see how much emotional        prolonged, emotional proceedings that        you maybe angry with yourself.

16 |   Divorce Guide
   Shout it out. Roll up the windows in         Keep conflicts at a moderate level.       “I’m not going to talk to you until you
your car, or put your head in a pillow      Your ex will often match your level of        calm down.” Put limits on what you’ll
and scream.                                 intensity. And be sure to choose your         take and how you’ll be treated.
                                            battles carefully. Expressing every little
   Talk it out. It’s important when         irritation and disagreement provokes              Get some assertiveness training to
you’re angry to develop your own            resentment. Think about the most im-          boost your self-esteem. “Anger is like a
personal support system. Instead of         portant issues and let go of the small        fire that must be burned up into the ashes
directing your anger at your ex-spouse,     stuff.                                        of forgiveness,” writes Ahrons. “If we
talk to a good friend (or two), or find                                                   are passive, it is like throwing more logs
a therapist who specializes in anger          Use “I-messages” when expressing            onto the fire.”
management.                                 anger. Say: “I feel disappointed when
                                            you don’t call,” not: “You stupid idiot,         Try not to take your ex-spouse’s
   Get some professional help. Anger        you’re always late!”                          comments too personally. Remember
can suppress other emotions, both                                                         that anger is a projection of one’s own
positive and negative. Talking to a             Give yourself time to recover from        inner feelings and one’s own world.
professional can help you begin to feel     the loss of your marriage. On average,        Accept the fact that this person is angry
those emotions you’ve been suppressing      experts say that the healing process takes    because they’re going through turmoil.
and move past the anger. You could          at least two years, and often longer. “It’s
also benefit from a support or anger-       important to realize how sad you are,”            Stay calm. It can really help
                                                                                          de-escalate the other person’s anger.
                                                                                          Relaxation techniques, such as deep
           When someone pushes one of your buttons,                                       breathing, can be effective when you’re
            your response is going to be way out of                                       listening to someone who’s really angry.

                   proportion to the offense.                                                Learn to recognize your own hot
                                                                                          buttons. When someone pushes one of
                                                                                          your buttons, your response is going to
management group, where you can             says Ahrons. “This won’t necessarily          be way out of proportion to the offense.
share your story and help yourself and      make you more vulnerable to your ex-
others move to a position of growth         spouse; your successful handling of your         Try to feel a little compassion — no
and development.                            emotions puts you in a more powerful          matter how hard that may be. Your ex
                                            position.”                                    may be feeling fearful and threatened, so
   Take responsibility for your part of                                                   try to hear what’s underneath the anger;
the marriage break-up. “It’s a rare cou-       Forgive, let go, move on. Anger can        quite often, it’s fear, pain, or shame.
ple in which both partners were             become a comfort, a constant in our           Showing empathy or compassion for
exactly equal in the breaking of the        lives, but as long as you continue to         your ex can go a long way to defusing
marriage, but it’s an even rarer couple     nurse your anger against your ex, you         his or her anger.
in which one partner was solely at          will never have a happy, fulfilled, post-
fault,” writes Constance Ahrons in The      divorce life. Own your responsibility for        Be honest with yourself. Recognize
Good Divorce.                               the break-up, and realize that you have       that when someone is angry with you,
                                            the power to make the choice to forgive       there may be something in what they’re
    Do some personal growth work.           and move on, or stay angry and remain         saying. If your ex is yelling at you, you
Anger is a great motivator toward action    stuck. It doesn’t matter what your ex         can choose to think he/she’s a jerk and
and can propel you to take steps in your    does; you can still choose forgiveness.       start yelling back, or you can “dig for the
life to change situations.
                                                                                          gold” in what he/she’s saying. Keep the
   Learn what “pushes your buttons”.        If Your Ex Is Angry:                          gold; discard the dirt and rocks.
Try to understand your anger — and
                                               Listen to and validate your ex-                Value your safety above all else. If
what triggers it — before you express it.
Don’t be afraid to say that you need        spouse’s comments. By really listening        your former partner’s divorce anger
some time to think about your response.     to his or her concerns, you may learn         seems to be headed in a dangerous
                                            where the anger is coming from and            direction, put some boundaries in
   Protect your children. Never make        identify what you can do to help. It also     place and communicate through a third
them part of your conflict with your        really helps to defuse the situation by       party. Threats should always be taken
former partner by withholding visitation    saying something like, “I understand          seriously: remove yourself from the
or support or poisoning their minds         why you’re angry with me.”                    situation and refuse face-to-face contact
against your ex. “For the sake of the                                                     if you sense any danger at all.
children, if for no other reason, learn        Don’t be afraid to take a “time-
constructive methods of expressing          out”. Walk away from an anger attack if          Jane Nahirny is the former Editorial
anger,” Ahrons says.                        you can’t handle it. You can try saying,      Director of Divorce Magazine.

                                                                                                            Divorce Guide     | 17
The Art of Negotiation
How to reach an agreement that’s both acceptable and affordable.
By Marjorie L. Engel and Diana D. Gould

       here’s a common pattern to all

T
                                              spouses are going to create a mutually         both the personal and the practical sides
       negotiations: a cycle of initial       satisfactory separation agreement in our       of negotiating.
       contact, planning (research,           family court system.                           • Request that negotiations be held
goals, strategies, and tactics), and one or                                                     where the atmosphere is quiet and
more negotiating sessions that lead to a         Be concrete in your ideas and remain           professional.
signed agreement, complete with provi-        open to reason. Ask questions until            • Be prompt in attendance.
sions to ensure its implementation.           you’re satisfied about your spouse’s           • Dress the way that will make you feel
                                              basis for reasoning. Be prepared to an-           the most comfortable for the setting
   There are two basic components to          swer questions that clarify the integrity         of the meeting.
any divorce negotiation: what is afford-      of your position. Be as tough as you want      • Make sure you have a written agenda
able and what is personally acceptable.       where a problem needs resolution, but be          from your lawyer.
The objective is to find a reasonable and     soft on the people involved.                   • Be prepared to take notes and check
legally acceptable balance between them.                                                        off each item as it is completed.
                                                 If you haven’t already done so, you         • Be sure to have copies of whatever
    Your first experience in negotiating      need to analyze and formulate your ob-            documents you have been asked
starts with your own lawyer. The two of       jectives in order to actively participate in      to bring.
you must work together until you              your own future. You must gather to-           • Sit tall and use direct eye contact as
achieve a meeting of the minds so that        gether the facts about what you have,             much as you can. Body language
what you want can be spelled out in the       what you want now, and what you wish              “speaks loudly”.
first draft of the separation agreement.      to accomplish by the time you’ve               • Speak in your normal tone of voice.
When you’re ready for the first negotiat-     changed the marriage vow “I do” to the            (You’re not on stage, even though
ing session with your spouse and the          divorce disclaimer “I don’t anymore.”             you may feel like it.)
other lawyer, how will you approach it?                                                      • Listen quietly and patiently to what is
                                                 The sooner you learn to put yourself           being said.
Thinking logically                            into your spouse’s shoes and ask, “What        • Make sure that you have equal
                                              would I do if I were you?”, the sooner            opportunity to voice your opinions
    When women use accepted business          you’ll be ready to arrive at a mutually ac-       or disagreement.
logic in preparing for a divorce, they        ceptable separation agreement.                 • Try to stay in the first person when
may be perceived as ruthless, calculat-                                                         you speak. (Present all of your feel-
ing, and manipulative. When men use           Entering negotiations                             ings, facts, and observations in the “I”
accepted business logic in preparing for                                                        mode, for example, “I think we ought
a divorce, they are usually perceived as        Bargaining for the future welfare of            to...,” and “I defend this issue on the
being practical, logical, and direct. Re-     yourself and your family is no picnic.            basis that...”)
gardless of clichés and biases, the reality   Here’s a collection of tips offered by         • Try not to be defensive about your
is that organized and rational thinking is    some divorcing couples that will walk             ideas and be open to advice — even
a must for both men and women if              you through the process. They refer to            constructive criticism.


18 |Divorce Guide
•   Refuse to discuss business and                When you reach a stalemate, the           lawyers to summarize the situation. If
    personal matters in the same conver-      lawyers should be able to provide             new issues come to light through an
    sation.                                   information about how a similar situa-        emotional outburst, they will require
•   Don’t succumb to pressure for an im-      tion has been previously handled within       discussion and verification. Then a
    mediate response. (Request a minute       the judicial community where your case        decision can be made about how this
    to think, or a “time-out”, to discuss     is being processed.                           new information will affect the develop-
    the matter with your lawyer.)                                                           ing agreement.
•   Never be forced into a decision —            The bargaining table is only used to
    even if it’s one that your lawyer ap-     resolve previously undecided issues. As       When to be reasonable
    proves. (If you aren’t sure, table the    you reach agreement on each issue, con-
    issue so that you have time to review     sider that topic closed. Agreements never         Not all divorces are adversarial. Not
                                              come together if you keep rehashing           all agreements are structured from long
    your material and to think.)
•
                                              what was supposedly already settled (in       and bitter disagreements over who gets
    When you need to release the ten-
                                              fact, they’re more likely to fall apart).     what. Just because you’re getting a di-
    sion/frustration/irritation that builds
                                              Every agreement must adapt to new             vorce doesn’t mean you can’t continue
    up during negotiating sessions, take
                                              circumstances or information, but too         to work together.
    a couple of deep breaths from the         many new issues late in the game cast
    diaphragm and let them out slowly.        doubt on the good faith of what was              Be open to brainstorming. If you’re at
                                              previously settled.                           an impasse or seem to be totally dead-
The bargaining table
                                                                                            locked, you can always flip a coin. Seri-
                                              Avoiding a free-for-all                       ously, the very idea that you have only a
   Everything is negotiable, and any-
                                                                                            50-50 chance of “winning” usually re-
thing can be used as a tool for                  Divorce negotiations can be trau-          vives the interest in negotiating. If the
negotiations. Go to the bargaining table      matic. In addition to the business at         other side won’t negotiate, don’t attack
prepared for promises to be exchanged         hand, it’s very easy to get trapped into      his or her position — look behind it to
and deals to be closed.                       old emotional patterns when your spouse       try to determine the motivation for the
                                              begins to act in predictable ways. Either     refusal to negotiate.
   It’s not a matter of simply putting a      one of you can become overly defensive
value on everything when you are work-        or hostile.                                   Six deadly obstacles to
                                                                                            negotiation

    The sooner you learn to put yourself into your spouse’s                                     The deadly sins can never be seen or
                                                                                            imagined more clearly than in the
        shoes and ask “What would I do if I were you?”,                                     process of divorce. When any of the neg-
                                                                                            ative patterns of a marriage are brought
                the sooner you’ll be ready to arrive at                                     to the negotiating table, the battle will be
                                                                                            long and difficult.
           a mutually acceptable separation agreement.                                      • Greed will make any reasonable
                                                                                                financial negotiation impossible.
                                                                                            • Anger will waste time and energy.
ing out what you want or what you’re             How do you respond to threats or de-       • Lust will fire up old memories that
willing to give in a separation agree-        fuse anger? What happens if the meeting           might get in the way.
ment. The bargaining process requires         starts to get ugly?                           • Jealousy will get you nowhere — it’s
setting three different basic values:                                                           not your relationship anymore.
• The least you would be willing to              When you and your lawyer discussed         • Pride causes stalemates.
   give or give up.                           your divorce files, especially the profiles   • Fear is perhaps the greatest sin of all.
• The most you would be willing to            and information on extenuating circum-
   give or give up.                           stances, you anticipated the danger               Fear can be the worst enemy of good
• The bottom line you would be willing        points and prepared suitable ways of          negotiation: fear of rejection and loss of
   to agree upon.                             coping. However, when both spouses            position, property, or place in the
                                              are wound up, something totally innocu-       community. There are also the fears of
   Divorcing couples tend to think in         ous can trigger an outrageous response.       loneliness and of having to start all
terms of things they want (assets) and        How can it be dealt with right then           over again; of personal and financial
frequently forget about what they don’t       and there?                                    hardship; and of not being able to handle
want (liabilities). Remember: ownership                                                     all that is ahead. The more dependent
of items such as debts, a bad piece of           First of all, there should be a time-out   you have been upon your spouse —
property, and lawyer’s fees must also         to cool down the emotions before re-
be negotiated.                                turning to the facts. Then allow your                      ../CONTINUED ON PAGE 24


                                                                                                               Divorce Guide     | 19
Parenting Pitfalls
Here are some of the most common warning signs that you need help before your children
become casualties of your divorce.
By Elissa P. Benedek, M.D. and Catherine F. Brown, M.Ed.

                                                                                          Adult Regression

                                                                                             Children sometimes behave in ways
                                                                                          typical of an earlier stage in their devel-
                                                                                          opment in reaction to their parents’
                                                                                          separation and divorce. In the same way,
                                                                                          a keenly unwanted or brutal divorce has
                                                                                          the potential for throwing an adult back
                                                                                          into an earlier stage of development or
                                                                                          leading to behavior that is unusual for
                                                                                          that person. Some adults may go so far
                                                                                          as to become helpless, depending on
                                                                                          others — including their children — to
                                                                                          take care of them.

                                                                                          Role Reversal

                                                                                              After a divorce, some parents experi-
                                                                                          ence a specific type of regression in
                                                                                          which they become too dependent on
       he process of separation and           • be aware of some of the problems          one or more of their children. In essence,

T      divorce sets up an almost impos-
       sible situation for parents. At the
same time that they need time out for
                                                 that divorced parents commonly
                                                 encounter (as described later in this
                                                 article).
                                                                                          a role reversal takes place in which the
                                                                                          children become the parents’ caretakers,
                                                                                          confidants, and counselors. These par-
themselves — to deal with the emotions                                                    ents are most often troubled, depressed,
and stress accompanying the loss of           Common Problems                             and lonely; they are unwilling or unable
their marriage and to decide a new                                                        to take responsibility for themselves.
course of action — their children have           When a husband and wife first            Sometimes, they are alcoholics or drug-
the greatest need for reliability and         separate and divorce, they experience       addicted. The result is a form of mental
assurances of love. Absorbed in their         the gamut of emotions from sadness,         bondage and skewed development in
own problems, parents may become less         anxiety, guilt, shame, and shock to         the child and a faulty sense of reality
affectionate with their children or fail to   elation over believing that all their       in the adult. In its most destructive
discipline them consistently. The more        problems are now solved. The spouse         (but thankfully rare) variant, some adults
parents pull back to regroup after a          who didn’t want the divorce may feel        go so far as to commit incest, using the
divorce, however, the more fiercely chil-     worthless and unlovable; the spouse         child as a replacement for the lost mari-
dren show their need for attention.           who wanted the divorce may have sec-        tal partner. More commonly, they have
When both parents and children have           ond thoughts. There is no one order for     the child sleep with them to alleviate
lost their emotional equilibrium, they        these emotions; each may come and go        their loneliness.
exacerbate each other’s problems.             again and again.
                                                                                              The temptation to become too de-
   The keys to breaking this cycle are for       It’s vitally important that parents      pendent on your children is always there
parents to:                                   overcome these reactions and, for           if you don’t have another adult to whom
• take control of their lives                 the children’s well-being, learn how        you can turn when you need advice or
• create a nurturing, predictable envi-       to handle the stresses brought about        just someone to talk to. Although there’s
   ronment for the children                   by the divorce. The children’s adjust-      nothing wrong with soliciting your chil-
• learn to deal with the children             ment is directly linked to the adjustment   dren’s opinions in matters that concern
   authoritatively                            of the parents.                             them (in fact, doing so helps build their


20 | Divorce Guide
sense of responsibility and family com-        are unrealistic from the parent’s point of       Some parents, however, use their
mitment), avoid relying on them for            view and do a disservice to the child.        work and/or their children as a handy ex-
advice that affects only you or that should    Being assigned and expected to carry out      cuse for avoiding interaction with others.
be offered only by adults. For example,        age-appropriate tasks creates a sense of      They may still be sad and upset about the
it’s all right to ask your children to help    accomplishment and self-discipline in         divorce — unable to put it behind them
pick out the family’s new car, but you         children. It’s a training ground for          and take the first few shaky steps to
should not ask them whether you should         handling increasingly more difficult de-      reestablish their lives. They show no in-
date someone you just met at work.             mands that will be placed on them by          terest in dating, and may deny having
                                               school, other institutions to which they      sexual feelings.
Overburdened vs. Idle                          belong, and eventually, paying jobs.
                                                                                                 Some people, overwhelmed by de-
   For many harried, overworked single             Studies have shown that children          pression, may feel unable to make the
parents, it’s sometimes all too easy to fall   with divorced parents reap unanticipated      effort to meet new people or take on new
into a routine in which they depend on         benefits from assuming a greater amount       challenges. Such behavior often fosters
an older child to care for younger             of responsibility at a young age. Many of     over-dependence on the children, since
siblings, or assign chores that require an     these children report that they have a        they become the parent’s only focus in
unrealistic degree of responsibility.          greater sense of strength, independence,      life. What will become of such a parent
                                               and capability as a result of their experi-   when the children break away and estab-
   Although it’s not unreasonable for          ences in a post-divorce family. They are      lish their own lives? In its worst form,
single parents to expect their children to     clearly proud of themselves and of their      isolation may lead to severe depression
carry some of the weight of household          ability to assist their parents at a time     and other psychological problems.
duties, such responsibilities should be        when the family’s future was seriously
assigned with certain limits:                  jeopardized. Children whose parents are           At the other end of the social spec-
• The chores should be appropriate to          divorced — like all children — need to        trum are those parents who are any place
   the child’s age.                            feel needed; thus, parents should not         but home. With a full schedule of night
• Generally, children under the age of         try to protect their children from the        classes, church activities, outings with
   ten should not be left unsupervised.        vagaries of everyday life. The danger         friends or dates, these parents leave their
• Older children should not be given           comes when the children are robbed of         children with a round of babysitters and
   total responsibility for the care of        their childhoods, forced to grow up far       relatives (including the children’s other
   younger brothers and sisters. They are      before they’re ready. They can never re-      parent). Some may go so far as to replace
   siblings – not substitute parents.          capture those years.                          the former spouse with a serious new
• Chores should not interfere with                                                           love interest before they are emotionally
   schoolwork or sleep, or preclude time       Isolation vs. Activity                        ready, or they frenetically engage in in-
   with friends. Schoolwork is a child’s                                                     discriminate dating and sexual relation-
   most important job, and an active so-          In the immediate aftermath of di-          ships. Sometimes, such parents are
   cial life is a necessary ingredient of      vorce, many people follow one of two          (subconsciously or not) trying to blot out
   healthy development.                        patterns: they either isolate themselves      the fact that they even have children,
                                               from others or pursue an overly-hectic        who are reminders of their failed mar-
   Instead of overburdening their chil-        social life.                                  riage or a responsibility they wish they
dren, some parents go too far towards the                                                    didn’t have.
other end of the responsibility scale. To         People who choose isolation may do
assuage their guilt over the divorce,          so for may reasons: they may not be able          Obviously, the children suffer greatly
these parents exclude the children from        to afford a babysitter, or they may feel      by missing out on the consistent parent-
household tasks and try to do everything       guilty about leaving their children with      ing and love they need, particularly in
themselves. Or they may use such faulty        a sitter after being away from them at        the first few months after their parents’
reasoning as “I had to do too many chores      work all day. Although their motivations      divorce. Children’s distress is com-
when I was a kid. I don’t want to put my       are different, both types of parents may      pounded by the antics of an out-of-
kid through that.” Such selfless intentions    come to resent their children.                control parent and, not surprisingly, they
                                                                                             often come to mirror that behavior back
                                                                                             to the parent.

           The temptation to become too dependent on                                         Moving On

   your children is always there if you don’t have another                                      In the first months to a year after sep-
                                                                                             aration and divorce, your life can be in a
      adult to whom you can turn when you need advice.                                       state of upheaval. When the dust finally

                                                                                                          ../CONTINUED ON PAGE 24


                                                                                                                Divorce Guide    | 21
                                                                                              The
                                                                                              Mediation
                                                                                              Alternative
                                                                                              Mediation can be a viable
                                                                                              alternative to standard
                                                                                              divorce litigation. Here’s
                                                                                              what you need to know.
                                                                                              By Brad Marcoux


            hile death and taxes may be

W
                                               make suggestions when roadblocks               regarding support, asset division, and
            the only guarantees in life,       are encountered.                               visitation).
            acrimony and financial woe
almost always accompany an adversar-              The focus for both parties is on con-           Next, information-gathering begins:
ial divorce. It isn’t surprising, really:      trolling their own divorce, not on giving      your mediator will need documentation
after all, the legal system by its very        control to a judge. Unlike in litigation (in   for property, assets, and debts, as well as
nature pits people against each other,         which the lawyers speak on behalf of           tax returns, bank and pension statements,
seeming to offer the possibility of only       their clients), in mediation, mediators act    and any other paperwork relating to your
one “winner” and little opportunity for        as advisors while the spouses speak for        marriage and finances. Based on the
compromise. The search for a way to            themselves based on their own individ-         initial assessments and this documenta-
make the process of divorce less painful       ual needs and priorities.                      tion, a decision is made as to whether
has led many to mediation — also                                                              financial, legal, or emotional experts
known as “assisted negotiation” and it is      The stages                                     need to be consulted, and the actual
a form of alternative dispute resolution.                                                     process begins.
                                                  While mediators handle each case
   Unlike traditional divorce proceed-         differently depending upon their per-             While individual cases vary, most
ings, mediation takes the approach that        sonal style and their training (an attor-      cases can be resolved in a couple
individuals who were once able to or-          ney-mediator might handle things very          of months.
ganize their lives together can also           differently than a therapist-mediator)
arrange to live them apart. It’s a different   there are generally a few common               The big plus
way of viewing divorce, and one with           stages. An initial meeting with you and
many advantages. But there are a few           your spouse is arranged to assess the dy-         This short duration highlights one of
concerns that need to be addressed before      namic between both of you, explain what        the most appealing aspects of the
you can be sure that mediation is for you.     you can expect, and discuss costs. Some        process: although mediators generally
                                               mediators may also have you fill out a         charge between $150 and $450 per hour
What is it?                                    questionnaire or come in individually,         — about the same as a lawyer — the
                                               based on what kind of relationship you         speed can make it tens of thousands of
   Mediation is a negotiated agreement         currently have with your spouse and the        dollars cheaper than fighting it out
between divorcing spouses on the issues        mediator’s personal preferences.               in court.
of children, finances, and property. The
key word here is “agreement” — you                Once this initial stage is complete,           There are other advantages as well:
and your future ex create an agreement         you’ll set meeting times (usually weekly,      since you’re the one who is crafting your
that both of you can live with. The me-        but you can arrange any schedule that          own agreement, you can arrange for all
diator is simply there to keep you on          suits you), ground rules (no degrading or      of your concerns to be addressed to your
track, assure negotiations are fair, and       insulting language), and goals (usually        satisfaction before the process ends.

22 | Divorce Guide
Because of this, you’re more likely to be
happy with the final result, and be more
willing to follow through with your com-                Unlike in litigation, in mediation, lawyers act as
mitments than if your settlement had
been decreed by a court. No one likes                  advisors while the spouses speak for themselves
being told what to do, after all. And you
can arrange visitation and support that’s             based on their own individual needs and priorities.
beneficial to your kids — a massive plus,
considering how harmful a disputed
divorce can be for children. And there
aren’t any worries about your agreement       • What is your training and experience?       separate arrival and departure times can
not being legally binding, as the final           Most organizations require mediators      often effectively deal with the fear
agreement is drafted by the mediator              to complete at least 30 hours of train-   of psychological or physical violence.
into a “memorandum of understanding”              ing (and, in some cases, extra hours      More general fears of a gender advan-
that is then hammered into legalese by            of schooling in domestic violence         tage can usually be balanced out by a
your lawyers.                                     awareness), several hours of negotia-     trained individual mediator.
                                                  tion, and several cases. You should
The perfect process?                              be looking for someone who has done       Subtle power
                                                  at least ten divorce dispute resolu-
   Saving time, money, and perhaps                tions. Ask if they have experience            The mediator has a vested interest not
your dignity are all wonderful; these po-         with cases like yours (especially if      in taking sides but in keeping the process
tential advantages may make mediation             you have some unique circumstances        balanced and fair. Because a mediator’s
seem like the perfect way to end your             to negotiate) and what training           business can rely heavily on word-of-
imperfect relationship. But, as with any-         they’ve had.                              mouth, crafting an unbalanced settle-
thing else, there are complexities that       •   What organizations are you affiliated     ment would likely cost them both
you should be aware of before you dive            with? You can follow up with phone        business and reputation. And there’s also
in headlong.                                      calls to find out some information        an incorrect assumption made here: that
                                                  about those organizations.                the mediation process will be less em-
    One of the biggest bricks to be hurled    •   What is your approach? You should         powering to an individual than a legal
at mediation is that of power imbalances.         get as much information about the         battle.
It’s felt by some that if one person in the       process as the mediator gets from
relationship has dominated the other in           you about your case. Some mediators          Those who voice concerns about
the past, the weaker party is put at an im-       hold individual meetings, while           power imbalances, however, tend to
possible disadvantage when trying to              others use questionnaires or other        worry less about cases where the prob-
represent themselves. It’s a valid worry,         methods of screening. Ask questions       lem has been identified than a scenario
especially if you feel that you’re the            and be sure you’re clear and comfort-     where a mediator is oblivious to it. While
weaker party — and even more so if                able with everything you’re told.         each mediator’s methods of searching
there is or has been abuse in the past. But   •   Do you have any biases? It’s a blunt      for both subtle and overt power imbal-
it’s also a problem that a good mediator          question, but a valid one: everyone       ances may be different, a good mediator
should be able to correct. Power imbal-           has viewpoints that skew their per-       will take the time to inquire about po-
ances — from resource possession to               spective. Ask them how they feel          tential imbalances and formulate a plan
intimidation or even outright physical            about the role of mothers or fathers or   to compensate for them.
abuse — does not have to rule out                 about the care of children.
mediation as an option. Training for          •   Should our children be involved in            There are cases in which mediation is
mediators in recognizing and dealing              the mediation process? If so, how?        inappropriate, of course. Most mediators
with power imbalances is the key.             •   Should new partners be involved in        agree that if there is active and continu-
                                                  the process? If so, how?                  ing violence, or a fear of violence,
Questions to ask                              •   What is the cost?                         mediation is inappropriate — but all
                                              •   How much time do you feel the             stress that each case must be individually
   In your initial interview with the me-         process will take?                        assessed, and broad generalizations can-
diator, they will be looking for specific     •   Should other experts be involved?         not be applied.
signs that your case is appropriate for       •   What role will my lawyer play in
dispute resolution. You should take ad-           the process?                              Legal fears
vantage of this initial consultation to
assure yourself that the mediator has all        When used by a skilled and sensitive          Even though the final agreement is
of the qualities necessary to bring your      mediator, techniques such as shuttle me-      subject to lawyers’ approval, there is still
marriage to a fair and balanced end. Here     diation (where the parties are separated      a danger of your ex-partner not making a
are some of the essential questions you       and the mediator “shuttles” messages be-      full disclosure of assets. But such con-
should ask:                                   tween them) and precautions such as           cerns are rare, and, since mediation can

                                                                                                               Divorce Guide     | 23
be abandoned in favor of a trial at any       recover from such a devastating trauma,       person. Try to find a different approach
time, any apparent dishonesty can be          such reactions in their adult lives may       to the same problem; reframing a seem-
dealt with in the old-fashioned manner.       be avoided.                                   ingly insoluble problem may solve it.
Besides, as with domestic violence
cases, if you don’t trust your ex in the          Attaining an inner peace about your          It’s not necessarily all the things you
first place, you’re unlikely to seek a ne-    divorce partly depends on the quality of      know that will help you during negotia-
gotiated settlement.                          the relationship you and your ex-spouse       tions; it’s what you can think of at the
                                              are able to build as co-parents. If seeing    right moment to back your issues and
Final thoughts                                or thinking about your ex-spouse is emo-      arguments. This is where your files of
                                              tionally charged for you, you may need        prepared information can be invaluable.
    Mediation offers many significant         to monitor your attitudes and behavior
advantages to the traditional divorce         towards your ex in front of your children.    Recognizing coercive tactics
process. It can save time and money,          Remember, although the two of you
and allow two people who have decided         were unable to continue your marital re-         What’s fair and what’s unfair in di-
they no longer wish to share all of           lationship, this has nothing to do with the   vorce? What does it mean to step over
their lives to negotiate how they will co-    right or ability of each of you to be a       the bounds of common decency? What
operate, and how they will work out           good parent to your children.                 kind of tactics are allowable? What one
the details of living apart. Although                                                       spouse considers good strategy might be
there are some concerns — the lack of            This article has been edited and ex-       seen as deceptive to the other, depending
government regulation and the possibil-       cerpted from How to Help Your Child           upon the motives of negotiation.
ity of an unrecognized power imbalance        Overcome Your Divorce by Elissa P.
leading to an unfair agreement — gen-         Benedek, M.D. and Catherine F. Brown,            An early step in predicting what your
erally speaking, mediation can let you        M.Ed. Dr. Benedek is leading child psy-       negotiations will be like is to try to
and your soon-to-be-ex make arrange-          chiatrist and forensic expert. www.           recognize the tactics being used. If your
ments that you can live with today and        newmarketpress.com/title.asp?id=531           divorce is adversarial, you’re likely to
in the future. If nothing else, alternative                                                 face tactics designed to wear you down
dispute resolution is an alternative           For more articles on parenting,              such as:
worth investigating.                           visit www.divorcemag.com/articles/           • Deliberate deceptions
                                               Parenting_and_Step-Families.                 • Misrepresentation of facts
   Brad Marcoux is a former Editorial                                                       • Less-than-full disclosure
Assistant for Divorce Magazine.                                                             • Psychological warfare
                                              NEGOTIATION / CONTINUED FROM PAGE 27          • Stressful situations
 For more articles on divorce media-                                                        • Personal attacks
                                              financially, personally, or emotionally —
 tion, visit www.divorcemag.com/                                                            • Silent treatment
                                              the deeper the roots of fear. The fear of
 articles/Mediation.                                                                        • Withholding money or children
                                              negotiating with a spouse who is more
                                              powerful, more prestigious, or more           • Playing on spouse’s sense of guilt
                                              “important” than you creates problems,        • Body language
PITFALLS / CONTINUED FROM PAGE 29
                                              particularly if the spouse is well-           • Black-hat/white-hat designations
begins to settle, however, there is the       connected or has a prominent family.          • Threats
business of building a new life.                                                            • Dependency and helplessness
                                                  Under these circumstances, sitting        • Positional pressures
    Your first task in this reconstruction    down at a bargaining table seems like         • Refusal to negotiate
is to put your failed marriage behind you     risky business. When there are signifi-       • Unreasonable demands
and deal with any residual feelings           cant emotional or practical inequities,       • Escalating demands
of grief, anger, or guilt. In addition, you   you must do whatever you can to change        • Calculating delays.
need to realize that your role as spouse      the expected patterns of your position.
is separate from your role as parent.         Use all available resources: books, coun-         This article has been edited and ex-
Although your marriage has ended,             seling, and so forth. If you can avoid        cerpted from The Divorce Decisions
your parenting relationship goes on.          succumbing to predictable old ways and        Workbook: A Planning and Action Guide
                                              if you have a lawyer who isn’t easily im-     by Marjorie L. Engel and Diana D.
   That the children come to terms with       pressed or intimidated, you’ll be able to     Gould. Designed to help individuals pre-
the divorce has important consequences        balance the pressures against you by          pare in advance for every phase of the
— not just in the period following the        using strategies that are different from      divorce process.
divorce but in their adult years as well.     those expected from you.
Children with divorced parents some-
times rush into relationships for which           Whatever the obstacles, the basic rule     For more articles on divorce and
they are ill-prepared in an effort to prove   is to understand what options exist for        negotiation, visit www.divorcemag
they are lovable and to fight their fear      both of you. Insist upon realistic objec-      .com/articles/Mediation.
of rejection. If they see that you can        tives. Focus on the problems, not the
24 |Divorce Guide
   More Helpful Information Available
    @ www.DivorceMagazine.com
                                          THE POWER OF LISTENING                         REASSURING YOUR CHILD
Family Law                                Attentive, intentional listening helps         Strategies for alleviating your child’s
divorcemag.com/articles/Divorce_Law       reduce resistance and opens your think-        feelings of fear and insecurity.
                                          ing to creative solutions.
ADVICE FROM A JUDGE
A family court judge talks about effec-                                                  Health/Mental
tive preparation for court and how to     Money Matters                                  divorcemag.com/articles/Health_Well_Being
achieve results.                          divorcemag.com/articles/Financial_Planning
                                                                                         BEATING STRESS
THE CHILD’S BILL OF RIGHTS                CHARTING YOUR EXPENSES                         Some valuable remedies to help you.
A set of guidelines that must be pre-     Help with budgeting for your family’s
served in any custody arrangement.        past, present, and future expenses.            FEEL BETTER NOW!
                                                                                         You must identify and eliminate toxins
COMMON KNOWLEDGE                          DIVIDING MARITAL PROPERTY                      from your body, mind, and soul to
What are the rights and obligations of    How to deal with complex financial or          reawaken your capacity for joy.
common-law relationships?                 property issues in a divorce.
                                                                                         MOVING BEYOND GRIEF
DIVORCE GLOSSARY                          DROWNING IN DEBT?                              Failing to deal with your divorce-related
Legal terms you should know during the    Strategies for ending your post-divorce        grief may wreck your chances for a
divorce process.                          credit woes.
                                                                                         happy future.
ORDERLY JUSTICE                           LOVE, MONEY, AND THE BLENDED
The phases of a divorce trial.                                                           RECOVERING YOUR SELF-ESTEEM
                                          FAMILY
                                                                                         Your breakup may have left you with
                                          Divorce and the economics of love.
                                                                                         negative feelings, but you have so much
Mediation                                 WHO GETS WHAT?                                 more value than your marriage led you
divorcemag.com/articles/Mediation         Deciding what is “yours”, “mine”, or           to believe.
THE BENEFITS OF DIVORCE MEDIATION         “ours” can be a difficult process, but
                                          there are some guidelines to follow.           THINK POSITIVE!
How the mediation process can diffuse                                                    Use the magic of optimism to create a
the conflict and improve communication                                                   positive future for yourself.
in your divorce.                          Children/Parenting
                                          divorcemag.com/articles/Children_and_Divorce
EMOTIONAL ISSUES AND NEGOTIATION                                                         Parental Alienation
SKILLS                                    COPING WITH A DIFFICULT EX                     divorcemag.com/articles/Parental-
Two mediators answer some FAQs.           Strategies for reducing conflict and           Alienation-Syndrome
                                          increasing respectful communication
IS MEDIATION FOR YOU?                     between divorced co-parents.                   FREQUENTLY ASKED QUESTIONS
Mediation allows you to make decisions                                                   A renowned parent educator answers the
about your own future, but it isn’t for   CREATING CLARITY FROM CHAOS                    most common questions about Parental
everyone.                                 How to bring structure back into your          Alienation Syndrome.
                                          family life.
MEDIATION BARRIERS                                                                       PARENTAL CONTROL
We asked prominent mediators how to       MOM’S HOUSE; DAD’S HOUSE                       Stop parental alienation by separating
overcome some of the most common          How to set up two homes for your               fact from opinion when discussing your
barriers to a successful mediation.       children.                                      ex with your children.

                                                                                                            Divorce Guide    | 25
Relationships                               Get the Latest News                               TEN great ways
divorcemag.com/articles/Relationships       and Articles                                      DivorceMag.com
BREAKING THE NEWS                           • www.twitter.com/divorcemagazine               can help you through
How to minimize damage when telling         • www.BlogsOnDivorce.com
other people about your divorce.                                                                your divorce
THE GOOD DIVORCE                            Frequently Asked
                                                                                         1. Find a divorce professional.
The “good divorce” is not an oxymoron.      Questions                                       Browse our extensive, regional list-
It’s never too late to have one.            divorcemag.com/faq                              ings and find a qualified lawyer, me-
HOW TO STAY MARRIED                         FAQs BY DIVORCE PROFESSIONALS                   diator, Collaborative Practitioner, or
Tips from divorce lawyers on keeping                                                        Certified Divorce Financial Analyst in
the home fires burning.                        Divorce professionals (including             your area.
                                            law-yers, financial planners, and media-
LOOKING FOR LOVE                            tors) answer frequently asked questions      2. Connect with others at our
Opening yourself up to new scenes will      such as:                                        Forums.
help broaden your soul-mate search.         • “My spouse wants a divorce. I don’t.          The online community gives and re-
                                               How can I fight it?”                         ceives support from others who are
REINVENTING RELATIONSHIPS
                                            • “What if I don’t like my divorce              experiencing divorce.
Experts share their advice on social con-
duct in post-divorce relationships.            lawyer’s tactics and strategies? Can I
                                                                                         3. Ask an Expert.
                                               get a second legal opinion without fir-      Get answer from judges, divorce
Women and Divorce                              ing my lawyer?”
                                            • “Can one divorce attorney represent
                                                                                            lawyers, and financial advisors.
divorcemag.com/articles/Women_and_
Divorce                                        both my spouse and me? I think it         4. Cast your vote.
                                               would save us time and money.”               Take part in the online polls, or just
HONORING THE TRUTH                          • “If a divorce involves complex issues,        review some of the results.
How a divorced woman can see all sides         can you still use a mediator?”
of her marital breakdown.                   • “Is going to court the only way to         5. Find support in your area.
                                               ensure you’ll get your fair share?”          Divorce Resources listings can
ILLUSIONARY ICONS                           • “Should I tell my divorce lawyer              guide you to local support groups or
More women should learn how to be                                                           services.
                                               everything? There are certain things
comfortable in their own skin.
                                               I’d like to keep to myself.”
                                            • “Can I make modifications to my
                                                                                         6. Subscribe to our Divorce
MOVING BEYOND DIVORCE                                                                       eNewsletter.
Eleven steps to help a divorced woman          Divorce Decree? My circumstances
                                                                                            A free monthly e-mail newsletter of-
move on with her life.                         have changed, and I’m going to need
                                                                                            fers articles and news.
                                               more support.”
RECOGNIZE EMOTIONAL ABUSE                   • “What should I consider when choos-        7. Subscribe to Divorce Magazine.
When you love someone, it’s easy to be         ing a divorce mediator?”                     Published twice a year, full of helpful
blind to the effects of emotional abuse.    • “Should we stay together for the sake         divorce articles and resources.
RELEASING THE TOXIC EMOTIONS                   of the kids? If so, how long?”
The ways for a divorced woman to let go     • “Is it better to give or receive one       8. Browse divorce web links.
of negative thoughts and feelings.             large lump-sum payment up front              Useful links to sites offering divorce
                                               than monthly spousal-support pay-            information, products, and services.
Spirituality and Divorce                       ments?”
                                                                                         9. Read about celebrity divorce.
                                            • “How is custody and visitation of
divorcemag.com/articles/Spirituality_and_                                                   Learn how not to end your
Divorce                                        our child(ren) determined?”
                                                                                            marriage from the latest Hollywood
                                            • “How do we arrive at the right par-
                                                                                            splits.
JESUS ON MARRIAGE AND DIVORCE                  enting plan for our children?”
A Christian divorce lawyer analyzes         • “I’ve been ordered to pay an amount        10. Laugh!
what Jesus says in the book of Matthew.        of child and/or spousal support that I        Comic relief from the Humor
                                               can’t afford. What are my options?”           section.
TOUGH LOVE SURVIVAL STRATEGIES              • “If you live in a common-law mar-
Some practical ways of being loving yet
                                               riage, are you entitled to the same       www.DivorceMag.com is one of the
firm with our spouses.
                                               support and property division as if       leading divorce-related websites on the
IS IT OKAY FOR CHILDREN TO BE SAD?             you were legally married?”                internet. Visit it today for its online
The tender, compassionate way God           • “Who should consider using Collab-         community and for information and
cares for us and shares in our sorrow.         orative Divorce?”                         advice that will help with your divorce.


26 | Divorce Guide

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:36
posted:9/8/2011
language:English
pages:26