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Choosing To Mediate Your Divorce: Taking a Deeper Look at Spousal Support and Child Support Law in California

(Four minute reading time)

Every state has a different approach to spousal and child support. This points out to us, like a big neon sign, that what happens around support orders in California Family Courts is not necessarily what’s fair or just or a best possible outcome. It’s closer to being, “Just what we do.” For instance, in Texas, spousal support—also called alimony—is only awarded in cases where the people have been married for ten years or more; prior to that ten year mark, a lower income wage earner is SOL in a Texas Family Court, no matter the circumstances (and I can’t help but mention another huge difference in comparison to California: Texas Family Courts are not supposed to make any alimony order for longer than three years unless the lower income wage earner is disabled or practically disabled). As to child support, in Oregon, parties, attorneys, and judges use a handy-dandy free online calculator which factors gross income mixed with the child-share percentage, medical insurance costs, childcare costs, and viola, you have your support amount; they deftly avoid the quagmire of complexity in California due to its emphasis on net income and a multitude of further factors.

So when you […]

2017-12-28T01:51:59+00:00 September 14th, 2016|Dispute Resolution|

Through The Mediator’s Looking Glass: Beyond Clients’ Tears or Anger

(Three minute reading time)

 

I had a day in the office recently which left me wanting to write about an important truth: most of us express our pain and stress as either intense anger or intense sadness and we’d all be better communicators if we started seeing both of those outer behaviors as manifestations of the same thing. Fear. Fear of abandonment; fear of change; fear of loss; fear of being rejected; fear of failure; because like it or not we’ve all got boatloads of fears and they drive much of our behavior. Imagine how different our lives’ difficult conversations could be if we were all taught in high school to instantly feel compassion and love for someone being angry or mean; if only we were all taught that tears and sadness can disappear when someone is supported to do something about the things causing their fears. If only we were all taught that the yelling person is not “a jerk,” but is someone steeped in fear and that somewhere down the line, earlier in their life, they’d learned that they feel the most relief if they get angry and yell; and yes, the crying person is not “a darling,” but […]

2017-12-28T01:51:59+00:00 July 14th, 2016|Grief and Loss|

I’d Like My Divorce to Be Painless, Easy, and Free. Is There An App For That?

(Three Minute Reading Time)

I have been a mediator-attorney working with divorcing couples for twelve years now and have yet to see any solution—whether it’s pre-set, flat-fee divorce services or the Elkins Family Law Task Force’s sweeping reforms instituted to try to make California’s family court system user-friendly to litigants without attorneys—get anywhere near making the drastic changes that would be necessary for California’s divorce process to earn the description: painless, easy, and free.

When it comes to legislators, judges, attorneys, and entrepreneurs trying to make divorce painless there are two inescapable realties: divorce means change and change is stressful, even good change; and divorce is a legal status which means you risk painful experiences and results the minute you enter into the legal process without personalized legal information and guidance.

Why are legal situations always stressful and painful situations? Because judges (or attorneys) have the power to force you or the other party to do what they think is best; and the specter of placing control of your home, your money, and your children into strangers’ hands is painful for almost everyone. The legal system creates stress and pain, because it’s a crapshoot every single time you enter into it.

The professionals most […]

2017-12-28T01:52:00+00:00 May 17th, 2016|Divorce Process|

Choosing a Professional: Should Their Values Matter?

 

From my point of view, choosing a professional is the most important part of your divorce process because they are the lens through which your experience is processed. If they say the sky is falling, you’re going to experience the sky is falling; whereas, in the same circumstances, other professionals might say that challenges have arisen but there is a way to empathize and respond with surety rather than fear. Therefore, do not choose your professional lightly as they will influence the very heart of your divorce story and experience. Nonetheless, there is no ultimately right or wrong answer as to whether a professional’s values should matter because only you know what is the right approach for you, and just the simple act of asking the question, rather than finding a definitive answer, might enrich your choosing process.

After over a decade of observing and interacting with hundreds of family law professionals and the work product that trails in their wake, the following questions may serve you in evaluating your potential professionals’ values which might lead you towards professionals who are more likely to facilitate the kind of divorce experience you want:

  • Are they a person who is at the core […]

Big Change in California Family Law: Have You Ended Your Marriage or Not?

7/25/2016 UPDATE: THE FOLLOWING BLOG NO LONGER REFLECTS THE LAW AS FAMILY CODE SECTION 70 HAS BEEN ADOPTED TO END THE DAVIS DECISION

The law is changed over time by the courts and the State Legislature —two government entities that are constantly changing things in an effort to improve how our society functions.

For years, one of the most convoluted areas of California family law has been designating the date that a marriage ends. Attorneys call this subject “date of separation.” For ages the law in California has been that the date of separation is established when one person: 1) states that the marriage is over, and 2) after doing so, all of his or her actions are consistent with that statement.

Now this rule has always been considered an unfortunately blurry line and left family law professionals acknowledging that its blurriness engenders a lot of salacious case law on the subject. But when attorneys talked about the problems arising in divorce settlement negotiations due to the blurriness of the rule, most agreed that the alternative—to designate a bright line rule that the date of separation is when people start living in completely different residences—would not work well in the financial and social […]

2017-12-28T01:52:00+00:00 January 30th, 2016|Divorce Process|

In the Crosshairs: The Legislature is Poised to End Mediation in the State of California

 

About a decade ago I attended a lunch meeting in Contra Costa County with about 50 other area attorneys. The guest speaker, a mediator-attorney from down south and respected statewide, warned everyone in the room: If we as mediator-attorneys do not develop a mediation structure that protects our clients from malpractice eventually it will be done for us–and most likely be done badly. He meant his words to strike an ominous cord, but for most of us in the room our collective professional hubris left us in a haze of considering him a bit of a Chicken Little.  Walking out the door, talking amongst ourselves, we tittered things like, “The Bar or State Legislature would never be so stupid as to try and redesign a conflict resolution process that is practiced, as is, all around the world in both common law and civil law jurisdictions. Oh, goodness, no. They would never do that. That would be….crazy.”

And today, in the face of our collective professional arrogance, the citizens of California are in jeopardy of losing one the most efficient and effective ways to resolve the conflicts of everyday life, mediation, at the hands of the Legislature’s Law Revision Committee whose members […]

2017-12-28T01:52:00+00:00 December 22nd, 2015|Dispute Resolution|

Radical Love: Throwing ‘Trust’ Under the Bus, Part I

I would like to share a rather tricky concept which I discuss with some of my clients as they struggle with their painful fears around money, fidelity, career, loyalty, and vows. I primarily speak about this concept with my prenuptial clients, if an appropriate time arises, as they are usually in search of tools to build their relationship; whereas, it comes up only rarely with my divorcing clients as it would more be applied to their situation from the idea that maybe the pain of today is due to an aspect of the foundation of their relationship long-cemented in the past and hence unchangeable.

In its pithiest terminology, the concept is expressed in eastern philosophy as: trust no one. And, ouch, this concept needs a little unpacking in light of our common cultural notion that trust is the ultimate bedrock of a strong relationship whether it is romantic, familial, or friendship. So, first, let us take a step back to see what we mean by trust.

Trust is defined in the Oxford Dictionary as: “a firm belief in the reliability, truth, ability, or strength of someone or something.”

For most of us, the giving and receiving of […]

2017-12-28T01:52:00+00:00 October 19th, 2015|Grief and Loss|

Chasing Shadows: Searching For ‘The Truth’

I’ve recently been re-reading the seminal book Difficult Conversations: How to Discuss What Matters Most, and enjoying the reminder of how it’s often futile to try and drill down to “the truth” of a matter. Our general social paradigm tells us that our lives are quite scientific and linear and hence there is an objective truth about events which can be recapitulated later for veracity and examination. We typically talk about “what happened” from a place that there is one truth which can be irrefutably revealed and it will give us the way to answer complex questions such as: Was there a betrayal? Did someone do something wrong? Who is to blame for what’s happened?

The view I offer my clients pondering these types of questions, a view which is beautifully explicated in Difficult Conversations, is that the truth of what happened may be difficult to divine, and the conversation risks being unhelpful if not approached with a contribution mindset. Making this examination through our general social paradigm, trying to figure out “what happened” might end up being counterproductive by throwing someone down an existential rabbit hole in coming to grips with our interdependence and the subjectivity of reality or sending us shooting in the […]

2017-12-28T01:52:00+00:00 September 17th, 2015|Grief and Loss|

Transformative Mediation: Clients’ Highest Aspirations

I recently received an email from a European-based association which trains legal professionals from around the world. They are currently offering a class in Brussels titled Transformative Mediation and described the training, as follows:

“Transformative Mediation is based on the values of empowerment of each of the parties and recognition of each of the parties’ needs, interests, values and points of view. The potential for transformative mediation is that any or all parties or their relationships may be transformed during the mediation.”  Further, they explained that they would differentiate the skills which make up the practice of transformative mediation in contrast to the skills of a facilitative mediator.

I am intrigued at the juxtopositioning of these two labels, transformative and facilitative, in opposition to each other, as I have worn the label of facilitative mediator for over a decade now and can’t imagine practicing without the techniques described above as being transformative rather than facilitative . Of course a lexicon is only as good as a community can implement it, so this may be a tomato, to-mah-to moment, but I thought it was worth writing about because it highlights the breadth of experience open to mediation clients.

Some clients finish mediation with a […]

2017-12-28T01:52:00+00:00 June 3rd, 2015|Dispute Resolution|

Neutrality: What Does That Actually Mean?

I was sitting down with two potential clients in a one-hour consultation the other day when one of the people said to me, “Explain your approach to being neutral. I mean, you’re supposed to work for both of us…how does that work?”

I started developing my answer to that question at the beginning of my career when I took my mediation training from Gary Friedman. In his seminal book, he coined the term ‘positive neutrality’ which turned on its head the conventional wisdom of the day which interpreted neutrality as essentially abandoning clients to their own views, understandings, and impulses, with the mediator essentially struggling to “not participate in any way.”

Let’s take a moment to acknowledge how huge Gary’s idea of positive neutrality was 20 years ago. When the mediation of legal disputes first started, it was practiced by attorneys who had spent their entire careers in the adversarial system, which by its very nature forces attorneys to try to identify “the truth” of the situation before them, to see the situation as having opposing sides, and to fight for and protect their client. Therefore, neutral behavior back then was seen as being the opposite of the traditional, biased, […]

2017-12-28T01:52:00+00:00 March 21st, 2015|Dispute Resolution|