Archive for the ‘Divorce Process’ Category

How New Tax Law May Increase A Divorce Settlement

In mediation and other methods of non-litigated settlement processes, the goal is not for the mediator or neutral to remain solely as a referee.  This person may also offer information to the couple about their process.  This may be through providing legal or other information and what-if brainstorming sessions.  The idea is to generate awareness of issues that impact what the couple is doing and how to come to agreement creatively.

One example is with the passage of the 2017 tax reform bill.  The tax changes may make support agreements tougher to reach.  In the past, the government participated in the process by offering one side a tax deduction, and the other side claimed the income.  In the real world, this provided tax savings for the paying spouse.  Income was shifted from a higher tax bracket to a lower one.  That tax savings increased the income options of the lower income spouse while providing a tax break to the higher income person.

The New Tax Rules

That is gone after December 31, 2018.  For those racing for the “exit” before that date, the option of filing a legal separation with the court and entering into a spousal support agreement may preserve the deduction for when the divorce is final in 2019.  But even that option, if successful, will run out on December 31 of 2018.

But there is another part of the code that impacts business owners going through a divorce.  This may be especially true for those with a spouse-partner in the business.

Under revenue code section 199-A a taxpayer may be eligible for a 20% reduction in income based on the profits of the business.  This article is not going to explain the code section or how it may apply specifically.  We do want to bring up the fact that taxes and tax savings are financial assets to be considered in negotiations.

For example, under the new rules, if a spouse owns a business with $100,000 of eligible profit, there may be a $20,000 deduction against all other income on the tax return.  That deduction could result in significant tax savings and a component for the support negotiations.

In the negotiation, if support is $48,000 annually, with the elimination of alimony deductions, that would cost the paying spouse $25,846 in taxes ($73,846 X 35% = $25,846).  That is an expensive payment under the new rules.

With 199-A that calculation may change.  The taxable income may now be reduced by the 199-A deduction.  The idea under the new tax law is to reduce the tax impact on business owners.  The business tax rate drops from the higher personal rate to one that is comparable with the new lower corporate tax rates.  This is done through a deduction.

Under a simple calculation, assuming that the overall effective rate is 21%, the amount needed to pay the same support payment is now $60,760 ($60,760 X 21% = $12,760 in taxes).  This is about a $13,000 tax savings.

The net result in both cases is a payment of $48,000 in support.  With this new 199-A deduction, for some business owners, it is a way to pay less in taxes.  For others, this may be a way to stretch dollars and provide more in support.

Another side of the code section is the impact of salaries paid.  Those are also part of the calculations.  With a divorce, if the spouse had been involved in the business, depending on the post-marital relationship, options around salary and benefits may be another way of shifting income.  This course of action requires that a salary is justified.

In more contentious situations this may not be possible.  But the financial impact of this option may push some to reach a more peaceful and accommodating arrangement.  With divorce being inevitable and support as a required component, making a couple aware of the tools open to them is one role of a mediator and consulting attorney.

These are only illustrations of a concept.  This is not personal tax advice or a projection of a specific tax consequence.  Each person will need to run these complex illustrations for their situation.  But the concept is clear.  Tax issues matter and have a financial impact on divorce.  Take a closer look through One Last Look™ to review issues as they may impact a specific situation.

Armand D’Alo and Robbin D’Alo

Working Through Financial Stress in Marriage & Divorce

Money: A Path to Trouble or Peace

One of the common reasons cited by couples for divorce is financial stress.  They indicate things like too much debt, not enough income, someone not carrying their financial weight, overload of expectations not being met, and more.  Each one or any combination build towards financial stress in the relationship.

The fact is that financial matters may not be solved in divorce.  They may be compounded.  Instead of one household, there are now two.  The debts are typically an obligation of both people.  Taxes are also going to follow both if the returns were jointly filed.  Houses, when sold, may be used to satisfy debts, but then where do people go to rent?

Looking at housing, if there are children, it may be desirable for them to remain in their current school.  This requires a rental for at least one person to remain in the area.  In addition, there is the need for the other parent to have a place large enough to provide a suitable environment for the children.  The result is a more expensive living situation.

How to Handle Money

In marriage or divorce, the first step is to work through the details.  This starts with a picture of the couple’s current financial situation.  Awareness is a major key to moving forward.  Both sides need to understand what is available and how they arrived at that point.  If people are not aware of how they got here, the possibility of correcting the situation is diminished.  This is true regardless of their relationship choices.

It is interesting that in divorce, when one side files, there is a restraining order placed on the major financial accounts and assets of the marriage.  Changes in beneficiaries, withdrawals of significant amounts of money, and termination of insurance contracts are barred.  The only way a change occurs is with mutual consent.  The one exception is to cover the obligations of the community.  But even that needs to be disclosed and monitored in proximity to the expense.

This is actually a good pattern for couples to learn, married or divorced – sharing information and making decisions together.

War and the Choice for Financial Ruin

The use of legal counsel is always advisable in divorce.  The issue does not have to do with obtaining legal counsel.  The problems arise with how the attorney is used.

When couples refuse to cooperate, hiring an attorney may be an expression of frustration and a method of taking back perceived power and control.  When the divorce turns to a litigated fight, both sides retain attorneys.  This leads to a typical retainer ranging from $3,000 to $10,000 each.  If the divorce is perceived to be more complex, that retainer will most likely be much larger.

Money roll and judges hammer on wooden tableIn litigated situations, it becomes a legal version of “telephone.”  Attorney A talks with spouse A.  Attorney A will then contact attorney B (if attorney B had not already contacted attorney A).  Attorney B talks with spouse B.  They develop a response.  Attorney B responds to attorney A who then confers with spouse A.

At this level of conflict, couples are encouraged to avoid speaking with each other.  The exceptions are in the required situations like an exchanging of the children.  Direct communication is cut – except through legal counsel.

At $350 to $450 an hour, plus staff fees and out-of-pocket costs, the legal bills add up quickly.  It does not take long before the retainer is drained, and a new retainer is called for.

From our experience, the typical litigated divorce can easily run up $30,000 to $50,000 in legal fees.  If there are contested issues around children and custody, the cost increases exponentially.  The court will require evaluations and possibly a court-appointed attorney for the children.  All those funds are lost from the estate – money that most couples cannot afford spending.

Peaceful Path Forward

The alternative is to plan out a path forward.  In marriage, this is reached by having a budget both agree to follow and a simple “policy” of two signatures required for every expense.  The two-signature policy fosters mutual agreement and ongoing financial awareness.

The practical approach for couples in any situation includes a monthly review of fixed expenses.  These are the largest bills which include the mortgage, car payment (if there is one), credit cards, utilities and any other costs to the family.  This will also include a review of any credit cards, their usage, the outstanding balances, and the payments.

The next part is the periodic monthly expenses.  There are “forgotten” periodic expenses like car insurance and homeowner coverage.  There are “surprise” expenses like medical deductibles, car, and house repairs.  Families also take vacations, have birthdays, anniversaries, and other expenses that “happen,” but may not be planned for.

Putting together a budget for these expenses allows couples to set aside funds each month.  These funds are moved into the “untouchable” savings account for use when needed.

What is odd to couples in divorce, is that all this information needs to be planned out and disclosed in their financial reports.  The very thing that drove the couple apart is the issue where they need to cooperate most.  Then at the end, it requires two signatures to sign off on the financial disclosures – including the income and expense reports.

These reports are required by courts.  But when litigating attorneys are involved, this can become an expensive process with each side issuing requests for financial information.  If it is not forthcoming, the request turns into a subpoena – the legal demand for information.  If the material is suspected to be incorrect, this escalates to hiring experts to do forensic evaluations – more costs.

Our observations through the years are that education is one key to successful negotiations.  In marriage or divorce it is important for both spouses to have a full understanding of their mutual financial world.  This helps both sides to know what is on the table and whether an offer is acceptable or not.

The Lessons

In marriage or divorce, cooperation is essential to economize and move forward.  If the marriage is so far gone that a couple will not work on the relationship, then it is best to cut those losses, set up an independent financial program and take care of the business of divorce.  But do not enter this with the illusion that life will go on as it was in the past.  Cutbacks and sacrifice are needed to make divorce or marriage work.

With divorce, most cases create a mutual agreement by the couple to keep the household running, and the children cared for.  That sounds impossible to some.  In situations when the other person does not cooperate, there are ways to move the process forward.  The court may be used to garnish wages and to seek access to assets independent of the other person’s cooperation.

In California, there are laws under the family code that allow access to assets for support and maintenance of the “marital standard of living.”  This does not mean that the same standard a person was accustomed to will be maintained.  But it does provide methods to seek funding for legal counsel and support payments while the matter is sorted out.

In California, this starts with a court filing asking for temporary support.  If the request for temporary support is refused by the other side, then an assignment of wages is an option.  This process is available when cooperation is absent.

While demands can be issued and a level of support obtained through the courts, this course of action is expensive.  The spouse that is compelled to pay will have their employer involved through a legal garnishment of wages.  The cost to both sides for legal counsel to maneuver this maze leads to more wasted assets.  Working it out before resorting to this measure makes better financial sense.

A Core Question

If couples are headed in the direction of litigation, we have a question for them to consider together.  Is a fight worth the financial and emotional cost?  We also explore the hidden costs when children are involved.  If children are aware of the divorce, they will most likely be aware of their change in circumstance.  They may also be aware of mom or dad not paying for their support.  That is a devastating message to a child.

Closing Comments

Our mission is to educate people about their relationship options, including divorce.  As couples approach a crossroad in their relationship, they may believe divorce is their only path.  The fact is that a divorce is one option among many.  It is one point on a continuum.  We encourage couples to take One Last Look™ before deciding.  Here is a place to explore options based on the couple’s own facts and circumstances.  They can see how the process might play out in the real world of separation and divorce.  Investing about four hours to save thousands in legal fees and heartbreak is worth consideration.

 

Armand D’Alo & Robbin D’Alo

Note:  Links in this article were active as of September 2018.

The Myth of Anger & Divorce

When we tell couples that anger and frustration are a normal part of a relationship, they are typically surprised.  Research has shown that anger, by itself, is not a predictor of relationship trouble.  Anger is not good or bad; it is simply a fact of life.  This goes along with being irritable, sad, worried or disappointed.  In the Gottman’s research, they found that in every relationship people retaliate with anger when met with anger.  That includes happy stable relationships.  In fact, anger is one way that partners tell each other to pay attention to what is happening.

The Consistent Predictor of Divorce

When anger is coupled with criticism, defensiveness, contempt and stonewalling there is a strong prediction for divorce.  This is not to say that happy couples never fall into these traps, but how they move forward with repairing the relationship is the telling difference.

In arguments when blame is put on the other partner the typical response is for that person to become defensive.  The net result is that no one takes any responsibility for the situation.  Over time one or both may display a superior attitude towards their spouse.  This attitude of contempt pushes their partner to retaliate in some form, the most common of which is to simply shut down and withdraw.  This attitude of stonewalling leads to emotional separation from their spouse.

The result is, as Dr. Gottman calls it, a distance and isolation cascade.

Is there a path back from this brink?  That depends on the couple.  Those that keep their relationships in place build an atmosphere of richness where repair is possible.  Soft openings in heated situations as well as taking responsibility for part of the situation makes for an atmosphere for productive discussions.

As odd as it sounds, positive comments in an argument are one of the big differences in successful relationships and those that are troubled.  When we say that, couples think we are asking them to give high praise in the middle of a painful situation.  Actually positive comments are things like, “You may have a point,” or “I’m hurt and I think you can help me.”  These are compliments in a softened conversation.

To illustrate these points, we had the opportunity to share with Dr. Gottman our version of the Sound Relationship House – the Unsound Relationship House.

 

 

 

 

 

 

 

 

 

 

 

 

Looking at the cascade, let’s look a few key aspects in more detail.

Problems Are Seen as Too Severe

As problems mount, couples avoid discussions for resolution.  The partners become hostile towards each other.  The result is that they avoid interacting in meaningful ways.  The attitude toward the relationship is that the situation is helpless and hopeless.  This defines how the partners look at each other.  They no longer see each other as a person they can rely on.  The entire relationship reorganizes toward separation, compartmentalization and loneliness.

“We” Becomes “Yours” and “Mine”

In several research studies, couples who eventually divorced showed little fondness, had high negativity, did not consider themselves as “we.”  Their relationship was in a state of high chaos and high in disappointment with the relationship.

The result is that people separated emotionally first.  Then came the physical separation.  Couples refused to look at their partners as an ally or a source of support.  Problems were no longer shared and partners no longer asked for the opinions of their mate.  The only topics that were safe to share were the most mundane.  The relationship quickly devolved to the status of being roommates.  Outside opinions become more important than the ideas of their spouse.

Parallel Lives

The ending leads to couples leading parallel lives.  They are married in name only and proceed on separate tracks.  Contact with each other is reduced to a minimum.  People start to work late and work to get away from each other.  Time is generously distributed to events and obligations that are outside of the relationship.

All this leads to a sense of solitude.  This is probably the most devastating issue the leads to a final separation.  The feeling of being abandoned within the relationship is a haunting issue for couples in unhappy relationships.

Is there an option to come back?  Yes, but it takes commitment to each other, the recognition that both are responsible for the problem they are facing and accept the agenda that can bring a couple back from the brink.  The bottom line question for each couple is to ask, “Is it worth it?”  Do not get this wrong, some events are beyond repair.  Abuse and other negative behavior are violations of marital boundaries for safety.  Safety first.  But if this is about differences in attitudes and behavior in the relationship, repair is an option.

How the Six-Month Waiting Period for Divorce Works in California

California Says, “Think Before You Leap”

California has what they refer to as a cooling-off period for couples seeking a divorce. The idea is that within the six-month timeframe people will have the ability to step back. They can look at the realities of what they are doing and then proceed with better information. The hope is that they will have a more informed plan of operation. The couple may even decide to reconcile. If divorce were instant, that would not be an option.

Unfortunately, the cooling off period does not always help couples to gain added insight into their marriage and divorce. By the time they hire attorneys, couples are not speaking to each other. They see legal fees mounting. Some even comment that they felt the pressure just to get it done because of the money spent.

The six-month waiting period is simply the earliest date at which a marriage can end. For those that are timing the divorce around the end of a year, you must be careful. The frame is six-months PLUS one day. Once the divorce is complete, both are free to marry or remain single.

Starting The Clock Toward Divorce

To launch the clock one person needs to file their petition with the court. The petition states that they are seeking a divorce from their spouse. Divorce filing is confusing.As part of the filing, there is also a process to serve papers on the other person. That is how the other spouse is informed of the action. It is the serving of the papers that start the clock moving. In movies and shows, this is the dramatic point where someone ominous walks up to the unsuspecting person. They suddenly shove papers at the unsuspecting spouse with the announcement that they are served.

That is really for the drama of a show. In fact, the service of papers can happen in many ways. To see the detailed overview of the process, you can visit the San Diego County Court web site. The basics are that you cannot do this yourself and you may want to talk to an advocate, lawyer or legal service about this process.

How The Timing Works Out

For example, if a petition for divorce is filed on June 1st, and documents are served on the other person the same day, the six-month waiting Reading divorce papersperiod and earliest termination date of the marriage would be December 2nd. But if they wait until July 1st to serve the papers, the soonest the marriage will end would be January 2nd of the following year.

So if someone wants to end the marriage as soon as possible, and tax filings are an issue, they need to watch the timing. The anxious spouse needs to have the other person served in a timely manner that meets the targeted deadlines.

You need to remember that wanting to end the marriage in six months does mean it will happen that way. The other spouse may have other thoughts. That is why we recommend One Last Look as a way to get both sides working for the same goal.

The “What” & “How” of Serving Papers

The person who is serving the papers must be at least 18 years old and not involved in the case. The person will have to fill out a Proof of Service form telling what they gave (served) to the other person. There is also a chance, if this goes to court, that the individual who served the papers might have to appear and testify when and how the papers were served.

The link above will let you learn more about details for the following forms of service.

  • Personal Service
  • Substitute Service
  • Service by Mail
  • Notice and Acknowledgement of Receipt
  • Service by Publication or Posting
  • There are also processes for serving people living outside of California as well as someone that may be incarcerated.

The court requires service so that everyone involved is aware that the divorce process is happening and it allows both sides the opportunity to respond or take whatever legal actions they deem necessary.

If there is a change of heart during this period, even if a final judgment has already been entered and a date for the marriage to end has been set (but that end date has not yet occurred), the couple can file for a dismissal. The action has the effect of terminating the case (referred to by the court as extinguishing the pending termination). Of course, it takes both sides to agree to this.

Be careful as you move through this process. Errors in filing can result in the entire case potentially being invalidated.

Armand & Robbin D’Alo

Gray Divorce: What Went Wrong?

The process of divorce is common across all ages. It’s about the division of assets and income as well as support for small children, when they are part of the picture. With Gray Divorce, there are a few different twists to the mix that focus on time together, division and support during retirement and the facts of health as we age.

But for those that have been together for so long, what brought the marriage to a point that divorce is the option?

Average life expectancy today is about 79. The 2010 census showed more than 40 million people over the age of 65. At this point in life there can be many internal questions that drive us to seek change. Just like the younger divorcing couples the gray divorce experiences infidelity, family violence, substance abuse, financial pressures, a sense of lost direction or simply the wish for independence.

But as we age, the sense of interdependence plays a large roll in these choices. One example is when health issues present themselves and life gets tougher. At a time when people thought they would be free to enjoy life, heartache sets in.

The afflicted spouse may selflessly want the other person to move on. They do not want to be a burden. The caregiver may be fatigued emotionally and mentally. As caregivers, it is often too stressful for one person to deal with the decline in health of a spouse.

Close up of mature couple fighting sitting on sofa

Dominic A. Carone, PhD, noted that in the case of Alzheimer’s, couples struggle with the desire for relationship. Dr. Carone, notes that it is common for the caregiver to begin seeing other people after the spouse has developed Alzheimer’s. The typical question is if the caregiver should be allowed to see other people, because the spouse that they knew is now “gone.”

This is a struggle that reaches far beyond the longing for a change in life. The years of companionship are lost. That is coupled with a caregiver’s sense of personal vitality and a personal thought that there is still much more to life.

This idea is too often quantified and qualified by research and statistics. It really deserves a different look… a more personal inside look.

For an interesting twist on the same Alzheimer’s dilemma, Deidre Bair gives a glimpse into the situation. In her book, Calling It Quits, she comments about Jan, a middle-aged woman, with parents in their eighties. To quote Jan, “Growing up in Margaret and Harry’s house had been like living on a battleground, as they argued, shouted, and threw things on an almost daily basis.”

Later Jan learned that both her parents needed supervision due to Alzheimer’s. She had to take on the custodial duties of both. Even though they had been divorced for over 20 years, Jan feared what was about to happen. But, according to Jan, when they moved in she said, “They have become best friends because they can’t remember they were ever married to each other. They would spend their days happily sharing tales of their miserable marriages and how they wished they had met when they were younger.”

What a tale of circumstances. That is not to say every story goes this way. They do not. The more common situation is a spouse watching the other as life’s memories fade from view and there is only the shell of what was once a companion.

While health creates a real struggle and dilemma, it is not the average course of events. Most people live longer together which is often cited in research as a reason for the gray divorce. That idea raises the question of how people handle the gray divorce when they feel all else is lost? Can it be avoided?

John Gottman notes that as people grow older, there is a tendency to forget how to connect. Proximity to a partner does not equal knowing and engaging with that person. Today technology creates barriers to intimate communication. People would rather dive into the electronic world versus being in the real world.

Senior adults outdoors in the park on park bench

As we age, there are some powerful actions that can help couples recover from and avoid late life separation. These were summarized by Terry Gaspard, MSW, LICSW as he wrote about successful second marriages. In fact, as people age, their relationship changes and the marriage evolves. It is like a second and third marriage as couples morph over time.

  1. Build a culture of appreciation, respect, and tolerance: The idea is to catch your partner doing something right and acknowledging it.
  2. Practice being vulnerable in small steps: Build confidence in being more open with your partner. Discussing minor issues like schedules and meals is a great place to start before tackling bigger matters.
  3. Create time and a relaxed atmosphere to interact with your partner: Ask for what you need in an assertive, non-aggressive way and be willing to see each other’s side of the story. In The Seven Principles for Making Marriage Work, Dr. Gottman encourages us to respond to our partner’s “bids” for attention, affection, and support. This can be something minor like “please make the salad” or as significant as accompanying our partner on a trip to visit an ill parent.
  4. Discuss expectations to avoid misunderstandings: Take a risk and deal with hurt feelings, especially if it’s an important issue, rather than stonewalling and shutting down.
  5. Prepare for conflict: Understand that conflict doesn’t mean the end of your marriage. Dr. John Gottman’s research on thousands of couples discovered that conflict is inevitable in all relationships and 69% of problems in a marriage go unresolved. Despite this, conflict can be managed successfully and the marriage can thrive! Take a short break if you feel overwhelmed or flooded as a way to restore positive communication with your partner.
  6. Communicate effectively: Accept responsibility for your role in a disagreement. Listen to your partner’s requests and ask for clarification on issues that are unclear. Use “I” statements rather than “you” statements that tend to come across as blameful, such as “I felt hurt when you purchased the car without discussing it with me.”
  7. Embrace your role as a step parent / step grandparent: In a changing relationship the role of each spouse will change whether the children are yours or from another relationship. This role may be one of an adult friend, mentor, and supporter rather than a disciplinarian. Learn new strategies and share your ideas with your partner. There’s no such thing as instant love. When a spouse feels unappreciated or disrespected by children, they will have difficulty bonding with them. This causes stress for the family and the marriage.
  8. Attune to your partner: Eye contact and body posture demonstrate your intention to listen and compromise. Practicing what Dr. John Gottman calls emotional attunement while relaxing together can help you stay connected despite your differences. This means “turning toward” one another and showing empathy rather than “turning away.” His 40 years of research showed that happy couples have a 5:1 ratio of interactions during conflict – meaning for every negative interaction, you need five positive ones.
  9. Establish an open-ended dialogue: Don’t make threats or issue ultimatums. Avoid saying things you’ll regret later. Money is one of the most common things couples argue about and full disclosure about finances is key to the success of the marriage so resentment doesn’t build up.
  10. Practice forgiveness: Accept that we all have flaws. Forgiveness isn’t the same as condoning the hurt done to you, but it will allow you to move on and remember you are on the same team.

A good way to make life work is to build a “couple culture” of awareness and appreciation. Using the tools of being open to a partner leads to friendship and intimacy. Using Dr. Gottman’s thoughts about respect, acceptance, positive communication, and having a good sense of humor can help make the mature marriage last a lifetime.

To read Terry Gaspard’s full article, go to the Gottman Blog.

 

Armand and Robbin D’Alo

All Mediation Is The Same… Or Is It?

Life has not gone the way you would like, and now you are faced with divorce. Maybe you wanted it, maybe not. In any case, it only takes one side to make a divorce happen.

There are many paths for couples going through a separation. These include working it out themselves, using mediation, working in a collaborative or cooperative setting, or go to litigation which is the highest level of conflict. Yet we find that in almost all situations some form of mediation may take place, even if it is a settlement conference in litigation.

Mediation is a process. It typically involves identifying the conflict issues to find real differences and common ground. The mediator will ask about what is important to each side regarding finances, parenting, and emotion-based outcomes. This leads to proposals and counter proposals. At this stage, the process focuses on communication. That requires both sides to be respectful of the other. The most direct way to achieve that is to remember one simple rule: if whatever is said at the mediation conference cannot be put into a box or be put into a math problem with it, the information may not belong on the table. The whole process results in the formalization of agreements.

But did you know there are different approaches to mediation? These include facilitative, evaluative, and transformative.

Facilitative mediation is very much like it sounds. The mediator assists the couple to come to mutually acceptable agreements. The mediator assists the couple in seeking and obtaining an analysis of options they are considering. The facilitative mediator does not make recommendations to couples. There is no advice or opinions given and no predictions about what might happen in court. The mediator controls the process while the couple is responsible for the outcomes. Mediators in this category want the couple to be the core of decision making, not their attorneys.

Evaluative mediation is more like a court-ordered settlement conference that a judge may hold. This type of mediation offers a view into the weakness of a person’s case or argument with predictions of what a judge might do with the same information. Evaluative mediation focuses more on the legal rights of each side. This is like shuttle diplomacy with the mediator moving from one side to the other. Attorney’s tend to like this format since they have more input into the process. The mediator may even meet with the attorneys alone to discuss the merits of the case, leaving the couple out of those discussions. Evaluative mediation can make the process more like a litigated settlement rather than a participatory process focused on the couple’s wishes.

Cost of Oak Tree Mediation Carlsbad San Marcos Divorce

Transformative mediation works to empower the couple with a recognition by both sides that there are interests and needs that are important and valid for each. The values and points of view are given importance in the process.

The potential for transformative mediation is that any or all parties and their relationships may be transformed during the mediation. Transformative mediators meet with parties together, since only they can give each other acknowledgment and respect. This method fully puts the couple in control of their path forward with the goal of morphing into something healthy on the other side.

Is there a best option? Not really. Each method has pros and cons.

Evaluative mediation sounds like it provides answers that are court-based and “fair” in the eyes of the law. Yet couples seeking mediation tend to want control of their own fate versus being told what is best based on somebody’s case or a law that was written and that does not fit their desires. If a couple wants someone to tell them an outcome, then this may be an option that could work for them. This process came out of litigation so one of the cons is that individuals may feel compelled to settle by the attorneys.

Facilitative and Transformative mediation tend to be more supportive of the couple by providing information and resources. These methods do inform couples of the law and help couples to look at options. They elevate the human elements of the family, a new view of life apart and the impact on children within the process. The con is that there is no pressure to settle and there is no fixed timeframe for people to reach an outcome. The couple is in total charge of the outcomes and, as such, the process may take more time. Yet the biggest pro element is that same issue – keeping the couple in control of their lives rather than surrendering to an outcome-based court model for reaching a settlement.

Each process is a tool that mediators may be trained with. When they are trained in the different methods, a mediator may be more flexible in their approach to your process. The result is if a mediation relies only on one approach, it is possible that legal information may play too great of a role while personal interests may be weighted too lightly. On the other hand, the reverse may take place. In all methods, one critical position of the mediator is to watch for weaknesses or an imbalance and to work to get both sides on an equal footing. This way the resolutions reached are better understood by both sides, and the agreements are profound, lasting, and respected by the couple. It is, in fact, their agreement.

Talk to your professionals that you are considering for any process whether it is mediation, collaborative or even litigation and find out their feelings about these different methods. Chances are that mediation will be used in your separation at some level and you should feel comfortable that the approach is something you agree with.

 

Armand and Robbin D’Alo

The Power of Professional Vulnerability

It is normal for people working through a divorce to feel guarded. The perceived lack of trust and commitment that has built over time makes it nearly impossible for one side to listen to the other. Couples at this point have most often been under a perpetual onslaught of criticism, distrust, and contempt. The most common learned behavior is avoidance – they just do not pay attention, give credence, or listen to the other side.

It is this defensive posture that leads so many to court. The belief is that the court will provide them with a forum for venting their grievance. They feel like the court is the only place where fairness can prevail. It is the way to make their partner listen to them.

This is where professional vulnerability comes in. Whether it is in mediation or collaborative divorce, when couples have trouble communicating needs and vulnerabilities they jeopardize their ability to reach a settlement. The attuned professional can step in to make those points known. By demonstrating the an expression of a vulnerability that has been observed, couples can see and learn skills necessary to move forward with their process and with life.

But how is this done without interfering with the couple’s task of direct negotiation?

MEDICAL STYLE - Couple in Marriage Counseling Session.Dan Wile practices a process he calls collaborative therapy. It is a method by which the therapist steps in the place of either person and takes on the “voice” of that person to acknowledge the two aspects of a dispute. First with the recognition of a position or action of the other person and then with a complaint coupled with the feelings that the complaint engenders. This is a powerful tool in mediation or collaborative practice.

For example, a couple that is splitting up over financial issues may experience fear. In the attack and defensive mode both people lose access to their communication skills. Their focus becomes narrowed. They can only perceive their attack position which is to state their point and make sure it is heard. They cannot access their own resources that could enable them to listen to another point of view.

MEDICAL STYLE - Couple in Marriage Counseling Session.At this point, the professional might move next to the person making the “attack” statement. Having an understanding of facts and circumstance from prior conversations, the professional might state, looking at the spouse, “The way you take care of the kids is admirable and it is clear you care deeply for them. That is probably why some of these expenses have happened. Yet the level ofdebt is scary and makes it hard to live with any degree of certainty.” The professional would then validate the statement to see if that was an accurate representation.

The same process goes to the other side as well making sure that both sides hear the positive intentions of the other and noting that there is a major complaint that has brought them to this point.

This is not therapy. It is not an attempt to heal the marriage. It is a place to open up the couple to some vulnerabilities of fear, anger, despair, and other emotions that might otherwise keep them from reaching their goal of a settlement. Like the One Last Look™ process we share with couples at the edge of divorce, sometimes it can open up a whole avenue of options for communication that they did not think were possible at this point in the relationship.

Professionals can act as teachers of communication methods in divorce situations. They can demonstrate the strategy of sharing feelings, staying as neutral as possible. Then they can help the couple to take a complaint, or a “demand” as they perceive it, and transform that into a need which they both probably share.

Cart ButtonUsing this process can help couples in divorce conflict to understand that all the blame and criticism are indications of needs for each person, both practical and emotional. By making these explicit and tangible, the solutions become workable.

Our common metaphor to help couples is to ask if their stated need can be put into a cart or added to a math equation. If they do not fit that criteria, then it is an emotion-based cry for something else.

Dan Wile PDF We are sharing an article from Dan Wile’s web site that is a very brief overview of his process. While therapists use this in practice for couple interventions, these patterns are often used in all our lives when we are attentive to the issues confronting us in a conflict situation. Everyone at one time or another has found themselves commenting as if they were the other person. It might have started as something like, “So I see that what I did made you feel … and if I had done … you might feel differently about this situation.” It is a matter of perceptive listening.

One caution is that when this is used in mediation or collaborative, it is more powerful to do both sides of the issue for the same event. That avoids the perception that the professional is taking a side in the matter. Equal voice to both sides builds trust that the matter is fully understood while avoiding added hurt or uneasiness within the negotiation.

 

Armand and Robbin D’Alo

How Long Does a Divorce Take

As with many questions we are asked, the question about how long it will take for a divorce has a typical answer — – “it depends.” Oddly this honest reply to the question rests with the people wanting the divorce. We always caution that the process will typically take longer than what the couple expects.

In a survey done by Nolo press, the actual average time for a divorce was 11 months. Contested divorces averaged 17.6 months. Those that could settle agreements together averaged about nine months.

It is important to note that the clock for being legally divorced does not start until the couple files the petition and the response are filed. The process simply does not start just because someone wants a divorce. Quite often there is a period of negotiation that goes on before the couple even files.

Divorce Mediation Takes How Long?

In California, the legal time required for a divorce, which includes a cooling off period to see if the marriage is salvageable, is six months. After six months has lapsed a judge can then grant the divorce, assuming everything is in order.

There are other factors that can make the process even longer. According to the Nolo survey, issues that caused the greatest delays and added costs are:

Child custody & child support
Alimony or spousal support
Division of property
Division of debts
Attorney’s fees
Claims for reimbursement
Claims for a possible breach of fiduciary duty

The real factor in time is a couple’s ability to communicate under the stress of a relationship that is ending. The feelings of emotional betrayal, economic betrayal, loss of trust, dependability and honesty all factor into this communication. As Caryl Rusbult labeled it, at least one person is at the point of the “Comparison Level for Alternatives.” They are done and for that person, anything is better than where they are.

In the next article we will talk a bit about strategy for getting through the divorce process with successful communication strategies.

 

Armand and Robbin D’Alo

Protection for Children from The Process of Divorce

Looking at the financial side of divorce, children can become the inadvertent or intentional focus of financial negotiations. They may also become the victims of negative arguments between adults in divorce. A child seeing a parent degrading the other parent can be devastating to that child. In the video “Split,” we see some children that withdraw from conflict and make up their own worlds to live in. Some become confused and do not have a solid emotional base from which to operate. Others build their defenses and appear to “handle” the change only to act out later in life as they deal with depression and other emotional issues that were buried along the way.

Child support is a fact of the law under all jurisdictions in the United States. It is based on the concept that children are the responsibility of the parents and should not become welfare recipients. Due to this mandate of law, the elements of support are often a point of contention, and include income allocable to support and the time a child spends with each parent. The more time a child spends with a parent, the more money is assumed to be spent by that parent for that child. Likewise, the more income one person has, the more capable they are of providing support for that child.

Father and daughters bonding by the lake

Father and daughters bonding by the lake


This scale of income versus time is used by some to manipulate the calculation to reduce their support obligations. Others use the time and income sides of the calculation to push for higher levels of support as a way of increasing their income, while never intending to use the funds for the child. These are the realities that ultimately come down to the injured person—the child—being the focus of a perverse argument over money.

In 2016, one case we worked on included the couple insisting that the income and time be balanced so that there was no child support obligations. Their incomes were almost identical; they purchased homes near each other so that their child could attend the same school and be around friends that are familiar and consistent. Also, the child had grandparents in the same neighborhood. While this is idealistic, it is an illustration of a couple that was looking out for the child in all aspects, and used their resources to foster that child’s wellbeing. They even set up a 529 plan that they equally fund for future education costs.

This ideal is not realistic for many based on economic needs. But the heart of the intention behind their choices is exemplary for couples to adopt. Keep the children’s interest first. They did not choose the divorce, and they should not suffer the consequences of adults fighting over financial considerations.

 

Armand and Robbin D’Alo

Family Does Not End with Divorce

In our last divorce mediation article, we described a pattern that we’ve discovered which helps couples get through the divorce process successfully. The pattern, F-A-C-C-T®, is comprised of 5 parts. This month we are concentrating on the first element, Family Re-Formation.

Getting divorced is tough. Couples who once shared dreams and hopes are hurt, angry, and disillusioned. Some are looking for justice and support. They want to be treated fairly, but the court system is not set up to be fair.

As couples separate, they become aware of all the connections they have from combined family members and shared acquaintances from social activities to social media and places of worship. That is why FACCT’s first foundation stone is gaining an understanding that the family is not breaking apart, it is taking on a new forming.

The prevailing view is that divorce is divisive. There is a fight going on, and the couple needs to break apart. People who associate with the divorcing couple often believe they must take a side. There should be a “right” and a “wrong” side to the separation.

But what if there was another way for the couple to move on? What if these other members of the family circle didn’t feel pressure to take sides? What if all parties could go on being close to each spouse and the children?

Before entering mediation, people may look at their positions and make calculations about the other person and their position. Then they look at the law with the help of an attorney. They may seek to use a neutral third party to bring their perspective to the negotiation table. Each person is attempting to be “right” or to convince the mediator.

From our experience, such an approach only undermines what a couple may be working towards – a peaceful separation. If pressure tactics are used, the result can be devastating to the family even though it may be unintended. When one person or the other wants emotional support, they force people to take sides, which can tear the entire family and social structure apart.

Most importantly, if children are involved, they certainly will feel this hostility. They even feel like they may be the cause of the family breaking. Even if there are no loud overtones, there may still be feelings of anguish and deep hurt all around the community to which the family belongs.

All those that are part of the process, including the full complement of family and acquaintances, need to step back and allow divorce mediation to work. It creates a forum for safe discussion and disclosure. Within the divorce mediation process, there is no “advantage” since the “power” between the parties is monitored and balanced. It is an environment in which seeking to win and take advantage over the other person is disallowed.

When a couple separates all their relationships are impacted, especially those with their children. Everything is changing. Instead of fighting that change, it may be time to embrace it in a way that makes change more fluid for children, family, friends, and acquaintances. It can be a time for a new family to form; one that has two homes and supportive community there to help everyone move forward.

In our next article, we will take a closer look at the 2nd element of the F-A-C-C-T® pattern, Awareness.

Want to know more about Family Re-Formation and F-A-C-C-T®? Go to our website OakTreeMediation.com and sign up to get your free copy of the F-A-C-C-T® EBook.

 

Armand and Robbin D’Alo