Nancy S. Caplan, Esquire

Nancy S. Caplan, Esquire
Bend Don't Break- Mediate!


Tuesday, January 26, 2010

Do You Think You Deserve or Want Sole Custody? Read This...

The knee-jerk reaction of the primary caretaker of the children in a divorce settlement negotiation is often to maintain that role at any cost. In other words, the pre-divorce primary caretaker of the children seeks sole legal and/or physical custody of the children. Often this causes the other parent to greatly fear being marginalized in the children's lives at a time when the children need both parents more than ever before. The sudden near-disappearance of one loving parent cannot be in the children's best interests. Often the other parent feels penalized for having single-handedly supported the family while the other parent was a stay-at-home parent for the benefit of the children. It hardly seems fair. Unfairness causes anger and resentment.

The argument usually goes something like this: "What does he/she know about raising the kids? He/she doesn't even know the names of the kids' teachers, doctors, coaches, etc." As a mediator I may ask (where the other parent seeks joint custody of course) "Do you think he/she can learn those things? How did you learn about parenting before you had children?"

What are the real costs in the situation where the non-primary caretaker parent "gives up" the fight and agrees to be regimented to an "alternating weekend plus 1 mid-week dinner parent?" They may include a diminished child-parent relationship for the parent who will just be the "visiting parent"; or suddenly that parent stops having any disciplinary role (since he/she only gets the children's leisure time requiring less discipline) and is often accused of being the "fun one" the "Disney-Dad/Mom" or the opposite effect- that parent feels stripped of parental rights and goes off, gets remarried and "replaces" his/her lost children with new ones. Rarely do sole-custody-insisting parents think of that. Suddenly the other spouse has new financial and emotional obligations. Think about the effect on the children's emotions, not to mention inheritance and/or shared life insurance policy proceeds. If there is a "de-bonding" effect caused by the grief of the virtual loss of children in his/her daily life, there is less emotional investment and therefore less financial investment- think of voluntary contributions to college, life insurance policies, or extras not affordable by the one parent and not required under child support.

The primary caretaker in the throws of a divorce may not visualize what the future will look like. Naturally in such an overwhelming life-change its hard to see past the present. Not only will he/she be a caretaker, he/she will be running and juggling the home- i.e. paying bills, mowing the lawn, especially where divorce causes a downturn in financial status and the gardner/the housekeeper/the handyman is off the payroll as a luxury. Single parenting isn't easy, and where the other parent was "forced out" will the resentment lead to an attitude of "well, well, well, not doing so well on your own are you?" or some other deep-seated half-wish to see that primary caretaker actually fail (because might total failure, i.e. a suddenly troubled child run to live with the other parent making his/her dream come true?).

Other costs to the sole custodial parent? A likely lower earning potential? What kind of employee will you be when only you are responsible for child care on sick days, snow days, school holidays, days off for the end of the marking period....etc., etc.? Sometimes a short-sighted sole custodian can't see past his/her greater child support check to the years when that support ends, still leaving the sole custodial parent with the need to support him/herself, but perhaps the inability.

But maybe, just maybe, sole custodial parent will meet someone and get remarried and gain financial footing by the joining of households. Except, ask yourself this: How much more difficult will it be to date, to have a social life? Do you think child support covers babysitting for dating? If so, you should read that statute again. Even if you can afford the baby-sitter (i.e. grandma), what freedom would you have to stay overnight with your new lover? Or will you simply experience your dating successes and failures in front of the children, i.e. integrating the new lover with the children because there is no other real relationship alternative? Is this in the children's best interests? How do children impact future relationships? What happens to the new bond of child-boyfriend/girlfriend when a relationship fails? Or should I say another relationship fails? How might this impact your children's ability to bond in adult romantic relationships? Ask a psychologist or read a book and you'll find out.

Here's one you might not have thought about. What if your "edge" in forcing your soon-to-be-ex to agree to your sole physical custody is that your kids' other parent had an affair? Whether or not that actually impacts custody awards is not the issue. Sometimes the cheater feels so guilty and is driven to give in on the issue of custody even where he/she desperately wants it.

Oh yes, the bloom of formerly-forbidden romance is often doused by the snotty noses and whining voices that only a parent can love or tolerate. Yes, I know. I just implied how bad it was to integrate new lover into the children's lives and now I'm contradicting myself. But, but, but.....If guilty-non-primary-caretaker-cheater-spouse really desires joint physical custody? Might you also negotiate greater child support? Or no pre-divorce introduction (or a specified time period perhaps reached in consultation with a pediatric psychologist) and/or no overnights with paramour and the children as part of the divorce deal? Watch how fast the paramour who remains on the outskirts takes offense and leaves. That's right. Paramour was dreaming "if only we could be together all would be perfect!" And yet, reality often plays out differently if you have the courage to let it. That's not a guarantee, obviously. However, considering the poor statistics the formerly-married-person & paramour relationships, better to force its ending sooner rather than later???? If the paramour-turned-legit-lover rises to the challenge and hangs in there, at the very least, your children have a better chance of remaining the top priority at the insistence of the new shared primary caretaker.

When allowed to take on the new and perhaps novel role as part-time primary caretaker, the joint custodial parent often reacts in favor of the children when the former-paramour-turned-legit-boyfriend/girlfriend challenges the children's priority. The bonding and protective instincts of a primary caretaker should never be under-estimated. If only you let it. If only you can put aside the knee-jerk reaction to the divorce and allow him/her to do so- yes for his/her benefit, but also for your own benefit, and most of all, to the great benefit of children who need two emotionally/financially invested parents.

I often joke (to friends, not mediation participants who may fail to see the humor) "Hey, what better punishment is there then forcing the other child-needs-ignorant-parent to share in the joy of laundry/grocery shopping/sick kids in the middle of the night/vomit/dirty toilets/whining/midday emergencies/forgotten homework/meal preparation/I can't sleep/I forgot I need snacks for twenty tomorrow/etc., duty?" The truth is that those obligations are doubled-edged. Yes, a pain, but yes, they are bonding events. But my goodness, it's not easy is it? At least realistically consider all the consequences before you decide how yours and your children's best interests are truly best served.

This blog offers legal information, not legal advice. Every effort is made to ensure the accuracy of the information and to clearly explain general legal principles. However this is not “legal advice.” “Legal Advice” can be defined as the application of the law to your individual circumstances. For legal advice, you must consult an attorney / lawyer.

Tuesday, January 19, 2010

Why Divorce Mediation is a Fraction of the Cost of Lawyer-Led Negotiations & Litigation

Litigation is the most costly of all process choices for separation and divorce when the parties are represented by attorneys. In litigation, your separation and divorce issues are examined and decided in a court of law by a judge. In fact, it is so expensive that it is all but out of the reach of typical divorcing couples. To meander this system, papers are researched, prepared, reviewed and filed. There are multiple trips to the courthouse, for motions (i.e. to seek more disclosure from a party or to complain of late disclosure), multiple hearings (i.e. a temporary order to determine things like custody pending the final trial), and multiple settlement and administrative phone calls, and meetings (i.e. the court scheduling conference, the court settlement conference.) When both parties are led by attorneys through the court system, two attorneys are paid from the single pot of assets (i.e. the equity in a home, your savings, etc.) and/or the incomes of a single family to assist the parties through every step. There are also extensive costs: multiple appraisals (disputes on values of assets), child experts (for hotly contested custody cases, including perhaps hiring yet another attorney to represent the children). And these are just the financial costs. The emotional costs to families would take another 100 blog entries and then some.

Imagine a single hearing in court. You've met with your attorney to prepare for an hour; your attorney travels back and forth, and perhaps prepares papers or researches an issue (another hour), you wait for your turn (another hour) and then you have your hearing, you speak to your lawyer about the outcome and your lawyer probably has a separate conversation with the other lawyer all for at least an hour (and this is an extremely conservative estimate). One hearing has now cost both parties eight hours of attorney time, and at least $2,000.00 has been spent. We haven't even added in the parties' costs of being absent from work. Again this is conservative. And the worst part? Very little ground has been covered and the case is only inching towards conclusion. Mediation costs are a very small fraction of litigation costs. Parties can go a long way in four hours of mediation.

But what about attorney negotiations versus direct party-to-party negotiations in mediation? Most of the parties' issues revolve around topics within the parties' unique expertise. If you feel that you are unable to negotiate effectively for yourself then you may have no choice. However, that would mean you would have to educate your lawyer on how to negotiate the topics for which you are the expert (i.e. your child's life; how much your food, clothing, etc. costs may be.) You will direct your attorney to say what you want and need. So who is really the "expert" on what you want and need to live every day after the signed Agreement?

If you think that with guidance of a neutral third party (the Mediator) you can: Determine your children's overnight schedule, decide who makes the decisions about the children's health and educations and religious upbringing; Determine who should live in the family home or whether it should be sold; Determine how to divide your furniture and "stuff"'; Figure out your living expenses and needs, and; Determine what you own and what you owe; then you are equipped to have these negotiations with your spouse at a fraction of the cost of attorney-led negotiations.

Just imagine discussing your Christmas Eve/Day custody arrangement. Does one party traditionally go out-of-town? Who must do the driving? Will the first year (when the children and the parties are most unsettled) be different than subsequent years? Are we splitting Christmas Day and Christmas Eve? What time for the transitions? If one party has Christmas, does the opposite party get Thanksgiving that year or New Year's? Typically in an attorney-led negotiation, one party might tell his/her lawyer "I want Christmas every other year." This is often conveyed via phone call or letter outside of the clients' presence. Neither party is there to gauge the other party's response to the request. Often the request is met with hostility that is allowed to fester, as opposed to the topic discussed in mediation, where the hot-button issues are immediately hashed out. Here's an illustration of a mediated issue:

Spouse A says: "I want Christmas every other year."
Spouse B responds: "What? You've abandoned us and now you are taking my child away on Christmas? Why don't you just shoot me???"
Mediator: "What if Spouse B gets the first year?"
Spouse A: "Fine."
Spouse B: "Great! You plan to abandon the kids on Christmas! They cry every night, and ask me why you left!"
Mediator: "What if the first Christmas is split and then alternated with Spouse A getting the second Christmas?"
Spouse A: "Fine."
Spouse B: "Fine. So long as I get Christmas morning!"
Spouse A: "Fine."

The Mediator and the parties understand the true interpersonal dynamics going on here. Spouse B does not want this divorce. Spouse A does. Spouse A wants alternating Christmas, but hears and knows the emotional gauge of Spouse B, and probably feels compassion or fear that Spouse B's emotions may be hard to control, which is true. People with out of control emotions may non-rational choices. In this scenario, the "hurt" party is given 2 years of Christmases to adjust. Not only that, but Spouse B experiences that Spouse A has made multiple compromises on the issue, which makes Spouse B feel better. Spouse A still gets what Spouse A wants- alternating Christmas. This is a typical kind of emotionally intelligent compromise.

But imagine this same scenario in a lawyer-led negotiation. Let's assume that since Spouse A wants the divorce, it is Spouse A whose lawyer initiates with a letter:

"Dear Spouse B's Attorney:

....of course Spouse A seeks alternation of the major holidays. Please review this with your client with your response..."

Now Spouse B's attorney reads the letter (at the billable rate). Attorney for B now calls Spouse B to convey the offer (at the billable rate). Let's assume that many things in the offer may be acceptable. But then the Christmas issue sets Spouse B off!

Spouse B (in consultation with Spouse B's lawyer): "Will I get the first Christmas? The kids will want to see Spouse A on Christmas! That jerk could care less about seeing the kids! The way Spouse A is treating the children, who knows if they'll want to spend any Christmas with Spouse A! I want to see my children every Christmas, which is what would happen if Spouse A honored the marriage vows! Tell Spouse A this is the choice he/she made!"

Spouse B's Lawyer intervenes: "Well Spouse A would get every other Christmas in Court, I'm afraid. So you have to agree to this."

Spouse B is now infuriated by the injustice and says: "Well good, then forget the part about college or maintaining life insurance! I don't have to do that under the law do I?"

Spouse B's Lawyer: "Well no. But why not do so if you are going to anyway?"

Spouse B: "Forget that! I have to live without my kids on Christmas, so I'm not promising anything to make Spouse A feel more secure! If I want to contribute to college or keep life insurance, I will. I'm not promising anything. Spouse A is getting this separation, isn't that everything he/she wants and I have no say about that do I?"

How does Spouse B feel? Does Spouse B feel he/she can live with the resolution? No, the thought of paybacks and injustice permeates Spouse B's thinking. And Spouse B's emotional state deteriorates with each such blow. Yet when, in the same scenario in mediation, Spouse B knows that Spouse A has "heard" him/her directly, the result is an agreement that both parties feel they can live with. This doesn't mean the divorce is now "good." It just means that the parties have negotiated a highly charged emotional issue successfully- meaning the best result under the circumstances. They each feel the compromise and understand the emotional balance of it. This emotional balance is what keeps the mediation negotiation on a forward path. The emotional spite response is typical when information is conveyed in traditional litigation methods. It creates road blocks and obstacles. In my lawyer-led negotiations, the response might have been, for example:

"Dear Spouse A's attorney:

My client agrees to alternate Christmas so long as he/she has the first Christmas. However, there will be no written commitment to college and life insurance obligations, which of course Spouse B is not obligated to do under the law. "

"What???" Thinks Spouse A? Spouse B is not going to pay for college? Not keep life insurance? Since when? This is what Spouse A hears. Spouse A doesn't hear the reasoning or the thought process. Spouse A, formerly feeling contrite and perhaps generous has now changed gears to righteous indignation about Spouse B who seems to be backing out of long-established college funding issues. The negotiation has actually taken steps backwards. No wonder the negotiation takes longer, is more contentious and produces less satisfying results!

Of course, receiving legal advice is often necessary. An independent review of a final Agreement is definitely a must. However, a few well-placed legal consultations followed by knowledgeable direct negotiations, and a check of the final Agreement, still ends up as a fraction of the cost of using two attorneys to negotiate these items for you. The satisfaction between the parties is more than a plus. It's a plus, plus, plus. It sets the tone for continuing as a family, albeit in a different structure.

Yes, you must know if you are entitled to support, if you are entitled to stay in the family home, but once you know your rights and obligations, why can't you negotiate yourself? Alimony, a wild card in family law, starts with an analysis of what each party's expenses are, to determine needs and the ability to earn/pay of the parties. Should you pay your attorney (or his/her paralegal) to gather your expenses and do the math for you? Won't you have to educate your attorney/paralegal about those expenses to impart an true understanding of your credit card charges, etc.? Who has a better understanding of these facts, you and your spouse or your two attorneys? What about division of furniture, is legal advice necessary to achieve a fair result?

In short, using mediation, (even in conjunction with attorney consultations and Agreement review) is still a fraction of the cost of attorney-led negotiations leading to an Agreement. Stay tuned for another blog one of these days, explaining the frustration of having someone negotiate for you on topics for which you and your spouse are the experts- i.e. your children, your house, your finances.

Put that aside for this day, and think long and hard about what dividing a family in two is really all about. Emotions and a fairly simple financial division. A child support calculation. The issues are typically non-complex. There's frightfully little money to waste in separation and divorce matters- so don't waste it. Does that make sense? Mediate. A fraction of the cost for a better result.

This blog offers legal information, not legal advice. Every effort is made to ensure the accuracy of the information and to clearly explain general legal principles. However this is not “legal advice.” “Legal Advice” can be defined as the application of the law to your individual circumstances. For legal advice, you must consult an attorney / lawyer.

Thursday, January 14, 2010

Mediation- Home Economics 101

Mediation at its finest produces practical results. If needs are met, then fear is diminished. In this economy meeting needs isn't easy, and therefore fear runs wild. I tell mediation participants that most bad things stem from fear. . Attorneys, by collective reputation, inspire bone-chilling fear in people. Therefore, the very whisper of attorney involvement ("I'm calling my lawyer!") causes immediate harm to the process, whether intended to do so or not. That is a known fear.

Divorce also produces fear of the unknown. In a great number of households, one spouse is historically the "bookkeeper." This puts the non-bookkeeper in the disadvantageous position of having to cope with, yuk, math, for heavens sake...Emotional upheavals and focus upon home economics do not go together. Unfortunately, gaining control over finances goes a long way to control over moving your life along.When I mediate between spouses, I force-feed monthly economic reality to and through both parties. That includes together calculating annual shortfall projections each may accumulate. As part of "to do" lists, I often have the "bookkeeper" party meet with the non-bookkeeper outside of mediation to teach their method. The idea is that the non-bookkeeper must gain control over this new role in life, and if their lucky, maintain open communication with the other for future troubleshooting. People in marital relationships must dis-entangle property, children and their respective roles in handling those things. It is often touching to see the flashes of nostalgia for these roles which are in flux. More than once I've seen a spouse continue to help manage finances, or the upkeep of the house, after the separation and/or divorce. However, for most, this is the exception. It is time to learn how to function financially, each on his or her own.

Of course an attorney may also properly counsel his/her client to understand his/her own new financial operating system - but at great cost to the family budget, and without the other party's direct input and training. The always-present benefit to my mediation process is that each party digests the financial realities faced by the other. It gives them a little compassion for one another - "same boat" and all that. I find that this is true across a broad economic spectrum...People live to the extent of their means and therefore after divorce most people are set back years and year from their financial goals, retirement goals.

This additional benefit- Home Economics 101: learning to budget, pay bills and how to understand your finances, is the course we'd have all benefitted from taking in senior year of high school. For many of us, we never learned it, and for some of us who understood it, the challenges of separation and divorce may have made it difficult to face it. So in mediation, we face it together. We learn it together to gain a good practical skill out of a bad situation. It makes good home economic sense. Mediate.

Tuesday, January 12, 2010

Divorce- Hard Choices- Who Should Make Them?

There are no agreements made in a separation and divorce situation which are "good." Every agreement is necessarily a negative compromise- How much less money each spouse shall have; how much less time each spouse will have with the children; how much less retirement, and so on. Unfortunately, a single family divided in two equals hardship. No matter how reluctant (and enraged) a spouse may be by this family tragedy to engage in negotiation with the other, the question urgently looms: Who will make those hard choices? Does it feel different to make a voluntary choice to juggle your employment schedule to rush the kids from school to athletics, than to be ordered to do so? In general, does it ever feel good to be ordered to do anything? How much more painful is it, when the scheduling of your own children's lives is placed in the hands of a stranger? Make your own choices, tailored to the needs of your family. Take a bad situation and make it less painful. Who's going to make the decisions and choices for your family? A judge? Or you and your spouse under pressure on the courtroom steps with your respective attorneys as the meter is running at a collective family cost of $500+ per hour? In Mediation, you pick the time, the pace of negotiations and control the costs, in addition to making those hard choices yourselves. Those are the choices that you will each have to live with. Make them yourselves.