Before you go in for a divorce mediation consult an experienced Spanish Fork Utah family lawyer. Sometimes divorce mediation may not work.
Relationships in which the spouses have been abusive toward each other also are not appropriate for mediation. The wife who has been abused by her husband may be afraid of him and negotiate out of fear rather than what she feels is just. Hence, she is disadvantaged. Mediation is designed to serve the interests of both parties so that both are winners and neither becomes a loser.
Sometimes one spouse wants to punish the other. The typical scenario is the ex-wife who feels abandoned by her husband and wants to punish him by taking his money and keeping his children from him. An attorney will help her to achieve her goals; a mediator will not. The latter will insist that punishment and revenge are not acceptable motives for becoming involved in mediation.
Some spouses are not mad at the other, but rather are greedy and want to get all they can in a settlement. Spouses who want to get and take everything will stop at nothing. A just and fair settlement is not possible when one of the spouses is hiding information.
Finally, if one spouse is controlled by a parent or new spouse, mediation cannot proceed because the spouse is not free to make decisions. For example, one wife had never developed so as to be able to make decisions without her father’s approval. Mediation would not have worked because he, not she, would have dictated the conditions of the settlement.
Despite the potential benefits to be gained by you, your former spouse, and your children, if your partner does not want to mediate the issues of custody, child support, and so forth, you have no alternative but to hire a lawyer to protect yourself. No one will win and everyone will lose but that is the way you must play the game. That’s why you should consult an experienced Spanish Fork Utah lawyer before you agree for a divorce mediation.
Issues of divorce mediation
One of the most important issues for spouses who no longer want to live together is how they will continue to take care of their children. Custody typically means which parent the children will live with most of the time.
In most divorces, the mother gets custody of the children and the father “visits.” In the past, most parents agreed that this pattern was best for their children. However, today more divorcing parents are deciding on joint custody, which allows both parents to have equal control of their children. A major advantage of joint custody for divorced fathers is that the mother cannot arbitrarily move away with his children but rather must satisfy certain legal requirements before doing so. Otherwise, she might move the children out of state and make it very difficult for him to see his children. From the point of view of the children, joint custody allows them to continue to have two active parents in their lives. The relationship between the former spouses also benefits.
Even though the parents may share joint custody, they may decide that the children will spend more time with the mother. An advantage of mediating a visitation schedule is that the parents fix the schedule the way they want it. Otherwise, the judge may tell the father that he can only see his children every other weekend, alternate holidays, and a month in the summer. There is no best visitation schedule. However, children tend to profit from frequent, regular, and consistent contact with their father.
Setting up a visitation schedule should also include time each parent will be with the children on holidays. A typical arrangement is to split a holiday so that each parent can see the children for some portion of the holiday. The same is done for the children’s birthdays. Time with both sets of grandparents and extended family should also be discussed. The goal is for the children to have equal access to both sets of parents, grandparents, and extended family.
The former spouses must also decide how the economic needs of the children will be met. If the spouses go to court, the judge in most states will consider the income of both spouses, the division of property, and the custodial arrangement and will make a determination of the amount each is to pay. In general, because the mother ends up being the custodial parent most of the time (and usually makes less money), the father ends up paying her monthly child support. This is often a percentage of his gross income. In some states, the father of two children ends up giving about 50% of his gross income to his former wife for child support. Judges will use child support guidelines of their state to determine the amount of child support. Spouses who are mediating their own agreement must use these same guidelines.
Unless spouses have been married only a short time, they have accumulated assets they must now divide. This can be done by listing all of the property, cars, equipment (e.g., television sets), bank accounts, stocks, and so forth, assigning a monetary value (appraisers may be needed), and dividing the property. Dividing the property usually takes time. Sometimes, some fathers feel so guilty for leaving their wife and children that they want to give everything to their former spouse. In the short run, this may help to reduce their guilt. But, after a few years, when the divorced father is in a new relationship, he may regret having been so generous with his former spouse, as he now needs these assets and money for his new life. One job of the mediator is to protect both spouses and ensure that there is a fair and equitable distribution of assets so that neither feels “taken advantage of” now or later.
An old term for spousal support is alimony, an amount of money one former spouse (usually the former husband) pays the other (usually the former wife). In the past, alimony was the husband’s “punishment” for leaving his wife and was designed to allow her to maintain her standard of living as if the marriage were continuing. But, with the advent of no-fault divorce, alimony is becoming less common. An alternative to “punishment” alimony is rehabilitative alimony in which the husband pays the former wife a certain amount of money that allows her to go back to school or to improve her skills so that she will be capable of earning a good income. Rehabilitative alimony recognizes situations where the wife as mother stayed home with the children while the husband was building his career and developing a high earning potential. Such alimony gives her a base income so that she can build her own earning potential. Rehabilitative alimony is usually awarded for a specific period of time.
Mediation may also involve discussing other issues. These include the special case of time with teenagers. Because of their need to be with their peers (which is good for their social development), it is important for parents to be flexible about their children. Teenagers should be consulted about what they would like regarding spending time with their parents. At issue is a good relationship, and forcing a teenager to visit dad for a month in the summer, when the dad will be at work most of the time, is nonsense. Better the teen bring a friend or stay for a shorter period of time. The point is to involve the teen in the discussion.
Parents might also discuss the transportation, health care, religious, and educational needs of their children. What each of these needs involves and how the parents will cooperate in meeting the needs should be decided. Parental understandings about each of these issues should be a part of the written agreement between the spouses.
Divorce mediators have certain guidelines they follow when mediating with spouses about their divorce. Most mediators try to move the negotiations toward what is best for the child. What determines “best interests of the child” is identified in both statutory and case law. Knowledge of these laws, child development, and feelings of the child are all important in deciding how the ex-spouses will share the parenting of their children. Both the mediator and parents may want to ask a custody evaluator to make a recommendation. Although each former spouse may want sole custody of the children with the goal of cutting the other parent out, the mediator will usually make it clear that it is in the best interest of the children to have both parents in their lives. Some mediators will call off mediation if the spouses cannot reach an agreement that protects the access of the children to both parents.
It is also in the best interest of the children to see their parents interacting in a polite and cooperative way. The mediator will do whatever he or she can to encourage such a pattern of interaction. Indeed, mediation itself provides an excellent context in which ex-spouses can learn to interact positively. Some mediators involve children in mediation sessions to discuss specific issues and to observe their parents negotiate.
Finally, the mediator will encourage the parents to only talk positively about each other to their children. Such talk also allows the children to feel comfortable making positive remarks to one parent about the other parent. Otherwise, children feel they have to hide a part of themselves (the part that enjoys the other parent) from each parent.
The mediator is on the side of the child, not on the side of either parent. Unlike a lawyer who owes his or her allegiance to the paying client, the mediator is on the side of the agreement–one that is fair to each spouse. To protect their neutrality, most mediators only meet with the two parties simultaneously. This prevents the mediator from developing secrets with either spouse, which might occur if there were meetings with only one party. Occasionally, mediators will ask to meet alone (called “caucusing”) with one partner to discuss a particular issue, especially when that spouse has taken an unreasonable position that threatens the success of the mediation.
A divorce mediation can succeed only if the parties are fair to each other. Such fairness can only occur if each party openly discloses all information to the other. Secret bank accounts, stock holdings, and the like are designed to cheat the other out of something. The mediator makes it clear early in the first session that openness is expected and ends the mediation if he or she discovers that one of the spouses is not providing full disclosure.
The tax consequences of child support and alimony are clear. Child support is considered nontaxable income to the parent who receives it although the parent who pays it cannot deduct it as an expense. In contrast, alimony is taxable income to the spouse who receives it but a deductible expense to the spouse who pays it.
An experienced Spanish Fork Utah family lawyer should be involved in your divorce mediation in an advisory role. Each parent needs an attorney to advise him or her about what topics to cover and to later review the agreement. As with any legally binding agreement, you shouldn’t sign anything without first having your attorney check it over. To do so is to potentially lock oneself into a lifetime financial obligation. Consider the father who agreed to set up an enormous trust fund for his children’s education. He later discovered that the payments were breaking him. He had signed the document because he felt guilty leaving his children and wanted to “make it up to them.” He later asked his ex-wife to lower the amount he was to pay each month. She refused. He then petitioned the court to have the amount lowered. The court refused. Today, he is still paying. Because the parents will feel most free to discuss and negotiate with each other if they know that what they say will not later be used against them, the mediator will ask the parents to sign a document. Such a document states that should mediation not be successful and the couple goes to court, they will not allow their attorneys to subpoena the mediator or any records resulting from the mediation for use in any legal action.
Spanish Fork Utah Family Lawyer Free Consultation
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506