In my last post about mediation I explained that, in Kalamazoo County, mediation typically occurs near the end of a divorce case. I believe many parties would be wise to engage a mediator soon after their case is filed.
In Michigan, we have minimum waiting periods before a divorce can be final – six months from the time of filing if you have minor children; two months if you don’t. Often, issues like parenting time, child support, spousal support, payment of bills or who will move out of the house can’t wait six, or even two, months. If you and your spouse can’t reach an agreement on these interim issues, you will have to go to court to ask the judge to establish the rules by which you and your family will live while your divorce is pending. The more you fight about, the more your divorce will cost. I believe mediation is a better alternative for a number of reasons:
First, it will cost less. That doesn’t make sense at first. If you are paying one more person – probably another attorney – how could it cost less? A typical negotiation works like this: You need something to happen. You contact your attorney. Your attorney contacts your spouse’s attorney. Your spouse’s attorney contacts your spouse. Your spouse’s attorney contacts your attorney. Your attorney contacts you with an answer. You don’t like the answer. You give your attorney another possibility. Your attorney contacts your spouse’s attorney. Your spouse’s attorney contacts your spouse. Your spouse’s attorney gets back to your attorney. Your attorney contacts you. And on and on and on.
Some issues warrant that type of effort. Most issues – especially interim issues – don’t. At early mediation, you and your spouse meet with a mediator. The negotiation occurs in one exchange – not over several days of four people calling, writing and going back and forth. You share the cost of the mediator, whose hourly rate might be less than the hourly rate for one of your attorneys. (You can have your attorney attend mediation with you or you can attend without your attorney with the understanding that no agreement is final until you have had a chance to talk it over with him or her. Some people use their attorney as a resource for information about the law and possible outcomes.) An issue that could take several days or weeks to resolve in the traditional way can be resolved in an hour or less if you and your spouse are able to have a face-to-face discussion in a controlled environment.
Second, you will probably continue to have a relationship of some nature with your spouse long after the divorce is over – especially if you have children together. A divorce proceeding is nothing more than a series of solving problems. If you begin with a very adversarial approach, it will be hard to change directions as the divorce proceeds. The divorce process damages your relationship even more and by the time the divorce is final it will be next to impossible to find any sort of common ground with your ex-spouse. Alternatively, with the help of a skilled mediator, you can start building a communication style with your soon-to-be ex-spouse that is collaborative and focused on meeting your common goals and the needs of your family. It won’t be easy at first and it certainly won’t be perfect, but you will find that, as you tackle an issue at a time, you become more skilled at negotiating with your spouse and solving problems fairly and reasonably. Many parties begin with early mediation to address the interim issues then keep going, dealing with an issue at a time, until they have their entire case resolved. Early mediation not only sets the tone for how your case will proceed, but begins to build a foundation for an easier, more constructive relationship long after your divorce is over.
If you would like to learn more about early mediation, call my office (269.344.5111) and set up an initial consultation to determine if early mediation is right for you.
Friday, October 17, 2008
Friday, September 26, 2008
A Word About Control
Control becomes a major theme in many divorces. In the course of resolving a conflict, whether by negotiation or through court intervention, it’s not unusual for a client to ask, “Why does she get to control everything?” or “Why does he always get his way?” or “Why should I give in to her?” If you find yourself asking some version of these questions, you are probably focusing on the wrong thing.
One of the most difficult truths is that a loss of control is inherent in divorce. Suddenly, decisions that were once yours alone become the judge’s. Your spouse will be entitled to input in matters that, previously, he had nothing to do with. In the course of negotiation or litigation, you’ll get your way sometimes; other times you’ll feel your spouse has won. Often, you’ll find yourself giving something to get something in return. This constant give and take over the simplest things is tiring but necessary.
Divorce can change the balance of power in a relationship. Often these changes are positive and long-overdue. A husband who believes his income and investments are none of his wife’s business will be required to give his wife and her attorney any information they ask for about income, bank accounts, his business (if he is a business owner) and other assets. Even though he proclaims his wife is entitled to nothing because he was the bread-winner, his wife will probably receive at least half of everything, with some support thrown in for good measure. A mother who believes her husband can’t possibly care for the children properly will probably find herself packing suitcases and kissing the kids goodbye at least every other weekend and on alternating holidays. Sometimes people actually become better parents when given the opportunity.
You will stay saner and more effective during your divorce if you focus on the end result rather than on control or winning every skirmish. When faced with a request or demand from your spouse, ask yourself what you really want in the long run. My guess would be that your long-term goal has nothing to do with control, but probably more with having meaningful time with happy, healthy children, being able to maintain a decent standard of living and completing your divorce in a reasonable time at a reasonable cost. If giving him his way will ultimately get you closer to your goal, do it, move on and if you find yourself complaining that he always gets his way remind yourself that that’s why you’re getting divorced.
One of the most difficult truths is that a loss of control is inherent in divorce. Suddenly, decisions that were once yours alone become the judge’s. Your spouse will be entitled to input in matters that, previously, he had nothing to do with. In the course of negotiation or litigation, you’ll get your way sometimes; other times you’ll feel your spouse has won. Often, you’ll find yourself giving something to get something in return. This constant give and take over the simplest things is tiring but necessary.
Divorce can change the balance of power in a relationship. Often these changes are positive and long-overdue. A husband who believes his income and investments are none of his wife’s business will be required to give his wife and her attorney any information they ask for about income, bank accounts, his business (if he is a business owner) and other assets. Even though he proclaims his wife is entitled to nothing because he was the bread-winner, his wife will probably receive at least half of everything, with some support thrown in for good measure. A mother who believes her husband can’t possibly care for the children properly will probably find herself packing suitcases and kissing the kids goodbye at least every other weekend and on alternating holidays. Sometimes people actually become better parents when given the opportunity.
You will stay saner and more effective during your divorce if you focus on the end result rather than on control or winning every skirmish. When faced with a request or demand from your spouse, ask yourself what you really want in the long run. My guess would be that your long-term goal has nothing to do with control, but probably more with having meaningful time with happy, healthy children, being able to maintain a decent standard of living and completing your divorce in a reasonable time at a reasonable cost. If giving him his way will ultimately get you closer to your goal, do it, move on and if you find yourself complaining that he always gets his way remind yourself that that’s why you’re getting divorced.
Sunday, September 14, 2008
How does mediation work?
I’m back to blogging after a fun, too short, summer.
If you are considering divorce, no doubt you have heard or read something about mediation. Mediation is either entered into voluntarily or it is ordered by the court. In Kalamazoo and many other counties in Michigan divorcing parties are ordered to attempt to resolve their case through mediation before they can have a trial in front of a judge. This blog entry will explain court-ordered mediation.
Different mediators have different training and different styles, but the goal of all mediation is the same: to help the parties reach a settlement on all of the issues in dispute and AVOID turning decisions about their money, their kids and the rest of their lives over to a judge. Despite the temporary insanity caused by divorce, most people remain sane enough to want to maintain some control over the outcome of their case.
A typical mediation in Kalamazoo County occurs toward the end of your case. If you have kids, you must wait six months before your divorce can be final. If you don’t have kids, the waiting period is two months. Mediation typically occurs toward the end of the waiting period.
At court-ordered mediation, you and your attorneys will meet with a third person, usually an attorney, who is also a mediator. The mediator will talk with all of you in varying combinations, sometimes separating each side – you and your attorney in one room; your spouse and his or her attorney in another – at times talking to just the attorneys and at times talking to everyone in the same room. A successful mediation will create an outcome that is fair to both parties. Neither party will feel like a winner and neither party will feel like a loser.
Mediation is preferable to a court imposed decision for many reasons: You know more about your assets, debts and kids than a judge could ever know in a day or two of trial. You know what will work best for you and your family. You and your spouse are the architects of a mediated decision. A decision after a trial is not your own – it’s imposed on you. A trial will inevitably involve some degree of “mud-slinging” and makes winning, rather than fairness, the ultimate goal. Your private history is splashed out in a public forum for all to see and the hard feelings engendered by a trial can linger for years. Just when it’s most important to re-define your relationship and work together for the benefit of your kids; a trial can leave you and your spouse licking your wounds and more alienated than ever from one another.
I think mediation is the best way to settle your case and I steer clear of clients who want to sit in a witness box and tell the world how bad their spouse is. Whether I’m acting as mediator or an attorney for one of the parties, I always find a successful mediation rewarding. My only complaint about court-ordered mediation is that it doesn’t happen soon enough. I’ll talk about the benefits of early mediation in another entry.
If you are considering divorce, no doubt you have heard or read something about mediation. Mediation is either entered into voluntarily or it is ordered by the court. In Kalamazoo and many other counties in Michigan divorcing parties are ordered to attempt to resolve their case through mediation before they can have a trial in front of a judge. This blog entry will explain court-ordered mediation.
Different mediators have different training and different styles, but the goal of all mediation is the same: to help the parties reach a settlement on all of the issues in dispute and AVOID turning decisions about their money, their kids and the rest of their lives over to a judge. Despite the temporary insanity caused by divorce, most people remain sane enough to want to maintain some control over the outcome of their case.
A typical mediation in Kalamazoo County occurs toward the end of your case. If you have kids, you must wait six months before your divorce can be final. If you don’t have kids, the waiting period is two months. Mediation typically occurs toward the end of the waiting period.
At court-ordered mediation, you and your attorneys will meet with a third person, usually an attorney, who is also a mediator. The mediator will talk with all of you in varying combinations, sometimes separating each side – you and your attorney in one room; your spouse and his or her attorney in another – at times talking to just the attorneys and at times talking to everyone in the same room. A successful mediation will create an outcome that is fair to both parties. Neither party will feel like a winner and neither party will feel like a loser.
Mediation is preferable to a court imposed decision for many reasons: You know more about your assets, debts and kids than a judge could ever know in a day or two of trial. You know what will work best for you and your family. You and your spouse are the architects of a mediated decision. A decision after a trial is not your own – it’s imposed on you. A trial will inevitably involve some degree of “mud-slinging” and makes winning, rather than fairness, the ultimate goal. Your private history is splashed out in a public forum for all to see and the hard feelings engendered by a trial can linger for years. Just when it’s most important to re-define your relationship and work together for the benefit of your kids; a trial can leave you and your spouse licking your wounds and more alienated than ever from one another.
I think mediation is the best way to settle your case and I steer clear of clients who want to sit in a witness box and tell the world how bad their spouse is. Whether I’m acting as mediator or an attorney for one of the parties, I always find a successful mediation rewarding. My only complaint about court-ordered mediation is that it doesn’t happen soon enough. I’ll talk about the benefits of early mediation in another entry.
Thursday, June 12, 2008
The Michigan Child Support Formula is Changing!
In 1989, the Michigan Legislature enacted a law that required courts to set child support according to the Michigan Child Support Formula (MCSF). Deviations are permitted only in certain, narrowly defined circumstances, which means the MCSF is applied in most cases. The MCSF provides two different formulas for calculating child support. The shared economic responsibility formula presumes that both parents are responsible for meeting the child’s financial needs when the child is with each parent at least 128 overnights out of the year. The primary financial responsibility formula presumes one parent pays most of the costs associated with caring for and raising the child and is applied when one parent has the child with him or her less than 128 overnights per year.
Unfortunately, legislating to meet the needs of children and families is an imperfect science and the two- formula method has created as many problems as it has solved. Whether a payer has the children with him or her 127 or 128 overnights can make a tremendous difference in the child support amount dictated by the formula. For instance, the difference between 127 and 128 overnights where both parents are earning $50,000 per year can be as much as $256 per month - $3,072 per year! This “cliff” has given rise to all sorts of unnecessary custody disputes because, even for the most well-intentioned parents, a battle over that extra day may be financially worthwhile or even necessary.
Beginning October 1, 2008, a new Michigan Child Support Formula will go into effect. One formula will be used for all parenting time and custody arrangements, taking into account the parties’ incomes and the amount of time a child spends with each party. There will be no cliff. Instead, the support amount will decrease gradually in correlation with increases in the payer’s parenting time. Family law attorneys welcome this long-overdue change which, hopefully, will eliminate the financial incentive for parents to engage in unnecessary custody disputes.
Unfortunately, legislating to meet the needs of children and families is an imperfect science and the two- formula method has created as many problems as it has solved. Whether a payer has the children with him or her 127 or 128 overnights can make a tremendous difference in the child support amount dictated by the formula. For instance, the difference between 127 and 128 overnights where both parents are earning $50,000 per year can be as much as $256 per month - $3,072 per year! This “cliff” has given rise to all sorts of unnecessary custody disputes because, even for the most well-intentioned parents, a battle over that extra day may be financially worthwhile or even necessary.
Beginning October 1, 2008, a new Michigan Child Support Formula will go into effect. One formula will be used for all parenting time and custody arrangements, taking into account the parties’ incomes and the amount of time a child spends with each party. There will be no cliff. Instead, the support amount will decrease gradually in correlation with increases in the payer’s parenting time. Family law attorneys welcome this long-overdue change which, hopefully, will eliminate the financial incentive for parents to engage in unnecessary custody disputes.
Wednesday, May 14, 2008
Are You Financially Ready?
Divorce isn't an impulsive decision for most people. Typically, the person wanting the divorce has been thinking about it for quite some time. It starts as a niggling idea that grows into a very real possibility. If you have the luxury of time to plan before a divorce is filed, you would be wise to ask yourself if you are financially ready.
Can you support yourself and your children without help from your spouse? Does your spouse earn enough to contribute to your support? Is it likely your spouse will comply with orders regarding support? If your answer to any of these questions is no, and if your divorce decision can wait, your first priority should be to increase your earning ability. That may mean finding a job or going back to school.
While the divorce judge will be able to enter orders requiring your spouse to contribute to your and your children’s support, the sad truth is that it can take weeks or months for a support order to take effect and even then the amount ordered might be insufficient or your spouse might ignore the judge’s ruling, in which case it will take even more time and money to enforce the order. Unfortunately, in many cases money is power. The more urgently you need something from your spouse (eg, money to pay the rent) the greater your spouse's leverage. If you do not need to rely on your spouse for support, you will be approaching your divorce from a position of strength rather than desperation.
Often clients will ask if they should delay seeking employment to enhance an alimony or child support claim. My answer is typically no. In almost all cases, you will end up better off with an income of your own and, if appropriate, some supplemental support. If possible, before you seriously move toward divorce, focus on reaching the greatest possible level of financial independence.
Can you support yourself and your children without help from your spouse? Does your spouse earn enough to contribute to your support? Is it likely your spouse will comply with orders regarding support? If your answer to any of these questions is no, and if your divorce decision can wait, your first priority should be to increase your earning ability. That may mean finding a job or going back to school.
While the divorce judge will be able to enter orders requiring your spouse to contribute to your and your children’s support, the sad truth is that it can take weeks or months for a support order to take effect and even then the amount ordered might be insufficient or your spouse might ignore the judge’s ruling, in which case it will take even more time and money to enforce the order. Unfortunately, in many cases money is power. The more urgently you need something from your spouse (eg, money to pay the rent) the greater your spouse's leverage. If you do not need to rely on your spouse for support, you will be approaching your divorce from a position of strength rather than desperation.
Often clients will ask if they should delay seeking employment to enhance an alimony or child support claim. My answer is typically no. In almost all cases, you will end up better off with an income of your own and, if appropriate, some supplemental support. If possible, before you seriously move toward divorce, focus on reaching the greatest possible level of financial independence.
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