a good mediator goes a long way
TRANSCRIPT
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Some Features about Divorce Law------------------------------------------------------------3
The Most Important Part of Divorce Is Child Custody------------------------------------5
Typical Problems and Issues Divorcing Couples Undergo--------------------------------7
Marriage and Alcoholism: Divorcing Your Addictive Spouse----------------------------9
Joint Custody and Determining the Best Interest of the Child-----------------------12
10 Divorce Tips to Keep an Amiable Relationship with Your Ex-Spouse-------------14
Advantages of Divorce Mediation-------------------------------------------------------------16
Be Prepared Before A Child Custody Case Hearing----------------------------------------19
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Some Features about Divorce Law
Divorce lawis difficult and will take a long process, but the basics of which are
easy to understand. To understand no-fault divorce law, one must realize that this
is a divorce where the dissolution of a marriage does not require any wrong doing
by either party. No guilty or innocent decision is given and neither party has to
have committed serious marital misconduct for the divorce to proceed. This was
the end result of the 1970 Californias no-fault divorce law.
Under the no-faultdivorcesystem, there is no requirement of any allegation
demanding divorce. No furtherance of proof of fault committed by either side of
the parties involved. The only thing that can be considered is the mere
declaration and application for the separation. The judicial court can easily be
satisfied on the plain affirmation that the marriage has broken down. The
differences between the spouses are sufficient for granting the divorce. This can
be applied by either party or by both parties jointly.
In the United States, no-faultdivorce lawis currently in effect in all the 50 states.
The latest one who recently passed a bill in 2010 to allow the no-fault divorce is
the District of Columbia, New York. However, before the late 1960s almost all
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countries that permitteddivorcerequired proof from the party applying for the
divorce that the other party had actually committed an act of incompatible to the
marital tie and the term grounds or the fault was the only requirement to
terminate a marriage. Moreover, this fault-based divorce is contestable. Careful
evaluation of the presented facts and data of the offenses which make the case
expensive and with an end result that most divorce can eventually granted. Most
judicial authorities around the world still require the proof of fault.
In the United States, most of the divorces applied are uncontested because both
parties are able to come to an agreement, either with or without lawyers,
mediatorsor collaborative counsel about the separation. The matters pertaining
property, children, and support issues were amicably settled. Upon presentation
to the court that a fair and equitable agreement was earlier made, approval of the
divorce is almost guaranteed. In cases that the two parties cannot come to an
agreement, they may seek for the decision of the court how to split property and
deal with the custody of their children. Usually, the courts would prefer parties
come to an agreement prior to entering court.
Divorce laws also arrange for the founding of financial support, often subject on
the length of the marriage and other factors. Spousal support is becoming less
common, because more women are entering the workforce and earning their
own income.
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The Most Important Part of Divorce Is Child Custody
When we talk about child custody, it means that a parent has legal custodial
rights and responsibilities toward the child. It is the legally permissible and
practical relationship between a parent and his or her child, the right of the
parent to take decisions for the child, and the parents obligation to care for the
child. Achild custodylegal proceeding is any case involving the childs protection,
adoption, guardianship, termination of parental rights or voluntary placement of
your child.
The court will also order for the legal custody of the child but the term does not
include an order relating to the child support or other monetary obligation of an
individual. The court will issue the support order that will be based on the childs
needs, obligors ability to pay, custody arrangements and the child support
guidelines. Moreover, the Criminal Code makes it an offense to abduct (kidnap) a
child to malice a custody order. Achild custodyorder initiates both the custodialand parenting time arrangement for the children.
In the case of an unmarried mother who has a child, she has legal custody of that
child until a court says otherwise. For those who are married and decided to seek
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divorce, or annulment proceedings, the
issue of child custody often becomes a
matter for the court to determine. The
Court must consider thechild custody
decision under the law about the best
interest of the child. The court retains
the power to modify the custody
arrangements until the child turns 18 or
is liberated.
Most states the customary decision forchild custodydetermination is the overall
best interest of the child and focus mainly, and that it assures the safety, health,
and welfare of the child. However, in some states, the frequent and continuing
contact with both parents is included and leaves the parenting plan decision up to
the resolution and discretion of the family court or a judge. In 1997, a uniform act
was drafted known as the Uniform Child Custody Jurisdiction And Enforcement
Act (UCCJEA) by the National Conference of Commissioners on Uniform State
Laws, which give exclusive and permanent jurisdiction for the child custody
lawsuit in the courts of the childs home state, which is defined as the statewhere the child has lived with a parent for six consecutive months prior to the
commencement of the proceeding.
The worst case is whenmediationfails where the next step is usually for a court
hearing in order to solve the issues. Judges require custody assessments of the
family by experts in the field of child psychology or mental health. Social workers
are also called to present evidence for consideration by the court to make itsdecision. This can be very expensive, complicated case and long-draw out and will
eventually result in denying child custody and child visitation rights to one of the
parents.
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Typical Problems and Issues Divorcing Couples Undergo
Divorceis a very messy business. A lot of emotional turmoil comes with this-
fighting, tears, stress, and confusion. Due to the heavy emotions involved in this
process, it becomes much more difficult to handle the real issues at hand. But it
is necessary in order for both parties to be able to move on successfully and
peacefully.
In California, the usual type ofdivorceis one that is caused by irreconcilable
differences between husband and wife. It is very common for divorcing couples
to become high strung about the divorce process that verbal attacks and
emotional outbursts are always part of even the most formal of meetings
regarding legalities. Sadly, this does not help the process but slows it down even
more and makes it even more difficult.
The following are the most common issues that divorcing couples go through:
Argument if an alimony support should be given from one to another
Argument if payments for child support will be given and how much will it be
Argument on child custody
Argument on the type of child visitation and the agreeable schedules
Argument on property and debt division
Argument on who gets to stay in the marital house
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Argument on whether there should be a restraining order, especially if the
divorcing couplehas violent fights
Most of the time, a restraining order will never be received lightly by the spouse it
is put upon. This will cause even more chaos in the divorce process.
Nevertheless, it is up to the judge if a restraining order will be granted to the one
requesting it.
Regarding spousal support, there are criteria that must be met by both parties in
front of a court of law before this is settled. They also should have been married
for at least 10 years. There also should be enough evidence that one party will
undergo heavy financial crisis without spousal support. The spouse from which
the spousal support is being asked should also not be remarried yet.
In local courthouses, the Family Law Facilitator is found there to be able to offer
assistance fordivorcing couplesin settling difficult matters. Most of the time,
divorcing couples really needs mediation in order to successfully finish the divorceprocess.
The longer a divorcing couple dwells on their back and forth arguments about
everything, the longer the process will take. That is why it is best to get good
representation and assistance and try their
best to keep their emotions under control.
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Marriage and Alcoholism: Divorcing Your Addictive Spouse
Many people suffer fromalcoholism, which is already a terrible ordeal in itself. If
you add marriage into the picture, this is almost always a path to catastrophe.
Most people who find themselves in this situation usually did know that the
person they were marrying was an alcoholic or could be one. The problem with
alcohol may have only come about later into the marriage or possibly their spouse
was already a drinker, but they were oblivious to the possibility that this may be a
problem in the future.
However this may have come about, ending up married to an alcoholic is truly a
terrible, unexpected thing. If you find yourself in this kind of situation, know that
you are not alone. Alcoholismhas a black history of destroying many marriages,
families and relationships.
For addicts, they will put their addiction at the top of their priority list. Not even
their spouse or children will be able to keep them from it. It is important for you
to know that this is not your fault. Alcoholismis a condition that takes up the
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mind and body of the person addicted to alcohol. And any type of addiction is a
destructive and untamed force.
If you are married to an alcoholic, you must immediately get professional help.
This is easier said than done for most of the time your spouse will be unwilling to
be treated or be in denial of alcoholism. This can be a terrible ordeal and even a
losing battle.
Though many people who are married to alcoholics try their best to help their
spouse recover from their addiction, many would simply choose to get out of the
situation. You may have done all you can to help your alcoholic spouse, but you
have been met with nothing but resistance and it has just continued to destroy
your family.
Your children are surely also affected by this and it also affects your family
financially, as an alcoholic will spend all your money to feed the addiction.
Eventually, even proper communication is not possible, since your spouse ishardly ever sober.
Finally, as you reach the end of your rope, you must think of yourself and your
children. This meansdivorce, or at the very least, a separation. You must keep
yourself and your children away from the abuse of your alcoholic spouse.
You have to get two things done on the onset. First, get a lawyer and consult
about how to divorce analcoholic spouse. Second, learn as much as you can
about the process ofdivorceand its laws. You must learn about child custody and
the laws regarding your assets and belongings in the case of a divorce.
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Unless you are having amutual divorce, you will find that it will be a very difficult
battle, even if you have legal representation. Divorce will also take a huge
emotional toll on you and your children. It is best to be equipped with theknowledge of your rights so that you will be able to get the divorce process over
with as soon as possible.
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Joint Custody and Determining the Best Interest of the Child
One of the most famous lines you would hear in every family court during a child
custody proceeding is in the childs best interest. But the interpretation of this
statement highly depends on the judges of the family court therefore rendering
its meaning obscure and relative.
But achild custodycase is a very
important proceeding that can be
very stressful for both the parentsand especially the child or
children. It is vital that the
decision made in a child custody
proceeding will truly benefit the
child, for it will greatly affect the
childs development. It is also
important for the parents to be
able to put aside their emotionaldisputes and really focus on their
childs needs during achild
custodyproceeding.
The laws surrounding child custody is different from each state. There is no set
legal position in what defines the best interest of the child. Other states have
preferences injoint custody, but others follow a case to case basis. These states
try to amend their laws to follow their preferences while others still rely on the
parents agreement.
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Like in most states, California defines the best interest of the child as one that
assures the childs health, safety and welfare as well as a frequent and
continuing contact with both parents of the child.
But in California, they do not have a set preference for or againstjoint custodyor
any variation thereof. It is mostly up to the family court and the judge to decide
upon this parenting plan. California also adopted a joint custody presumption
back in 1979, but in 1994, they amended this law to be able to allow joint custody
only if the parents consent for this to happen.
No matter what position a state takes regardingchild custody, in general there is
more favor towards joint custody. There are more bills coming out to support this
belief that a childs best interest is one that lets the child have continuous
contact with both parents, unless certain circumstances dictate otherwise.
If you are currently in the process of achild custody dispute, it is better for you to
acquire the services of a family law attorney for you to be able to fully understandhow the laws apply to your situation. You would also want to know the aspects
that influence the family courts decision in granting child custody so that you will
know what rights and responsibilities are entailed in this proceeding.
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10 Divorce Tips to Keep an Amiable Relationship with Your Ex-Spouse
Do you ever wonder how some couples manage to have amicable relationships
even after theirdivorce? Truly, these kinds of situations are not common, fordivorce is truly shrouded by nothing but negative feelings. But if you have just
gone through or are still going through adivorce, you may want to know these
ten tips that may be able to help you and your ex-spouse achieve a similar
effective relationship, for yourselves and for your children.
1. Live in geographic proximity. Especially if your children are still very young,
this makes a big difference. They will always feel so much more secure if they
have both their parents homes accessible, especially from school.
2. Keep the respect. Especially when you talk to your children about yourex-
spouse, be respectful and focus more on each others positive qualities. It is a
great disturbance to a child when their parents defame each other to them. They
will always feel like they have to protect one from the other.
3. Honor each other as parents. Give praise and credit where it is due. As each
parent does their duty to their children, honor this and do not feel like it is a
competition for your childrens love.
4. Have a set schedule forparenting. It is important to give a child consistency.
Custodial parents should respect the time of their ex with the children and non-
custodial parents should never push aside this valuable time when their children
are with them.
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5. Be accommodating. Even if a consistent schedule is best to be set, leave space
for flexibility as well. Be open to negotiating slight schedule changes with your ex
from time to time. Your children should be able to see how their parents can
manage changes gracefully.
6. Be present in your childrens lives. Aside from simply attending their school
activities and sports games, also make sure that you have some time for
recreation together. You dont have to be together with your ex all the time in
these activities, but it makes a big difference for your children to see both their
parents present in supporting their endeavors. This will help them avoid feeling
shameful of being a child ofdivorce.
7. Do not use attorneys for everything. Be responsible and mature adults and
negotiate most things between you and yourex-spouse. Use attorneys only when
absolutely necessary.
8. Be honest.
9. Discuss your childrens development periodically. This is very important, so
that you can still raise your children with a unified sense of values and principles.
10. Be patient and open.
These tips are often difficult to
follow, but they will always be
worth your effort and your
children will benefit from it the
most.
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Advantages of Divorce Mediation
As traditionaldivorceproceedings have become too expensive, too complicated,
too adversarial and too slow, couples are looking at mediation as an alternative to
traditional litigation.
So what is divorce mediation and
how does it work?
Divorce mediationis based on a
non-adversarial, no-fault divorce.
A non-adversarial, no fault divorce
requires the willing participation of
both parties. It is an alternative
process to handling things in court.
Sometimes called alternative
dispute resolution, it is a procedurewhere divorcing couples negotiate
with each other to arrive at an
agreement settlement with the
assistance of an independent,
neutral party or mediator.
This process is advantageous than traditional litigation as it allows the divorcingcouples to take control of planning their own lives and making decisions about
their future. Instead of two lawyers sending demanding letters to each other, or
having the decisions made by a judge who hardly knows the parties involved, the
couple are given more autonomy in working out their various issues and
negotiating a fair agreement.
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This scenario is especially beneficial for parents, who though separating, still have
a continuing relationship for as long as both are providing parental care.
There is amediator, who is specially trained to help couples draw out and resolve
the issues in their divorce, like visitation rights, child support, custody and
alimony and property division. Since he is neutral and independent, he works for
the benefit of the whole family. He facilitates the communication between
parties by making sure each party is heard, and asking questions to clarify issues
and will not allow one party to dominate the other in mediation.
A mediator should have impeccable knowledge of the system of laws and how the
present case may be deemed by the present judges and lawyers.
The mediator will gather all relevant financial information, or if necessary, the
opinions of experts such as appraisers or accountants and using his knowledge
and negotiating skills, try to draw the two sides together into a sensible, fair and
practical agreement that will be acceptable to both parties and to the Courts.
It is also advantageous that everything that is said in mediation is confidential and
cannot be used in court as evidence.
When an agreement has been reached on all sides, the mediator drafts the
agreement for review by each of the parties and their lawyers, if any. However, if
the parties cannot agree, themediatorhas no power to make either party
cooperate or agree.
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Resolution can be quick compared to litigation. Generally, the mediator will see
both parties together over a number of sessions. Based on complexity of the
issues and ability of the individuals to reach a fair agreement, the average caseusually takes at least three to four two-hourmediationsessions, spread out over
at least a month or two. More complex cases can take four to six months to
complete.
A major advantage is the cost. Mediationcan cost relatively cheaper than
litigation which can reach $15,000-$25,000 or even higher. In a typical case with
an average of three to five mediation sessions, parties can expect to pay acombined total of between $3,000 and $4,000. The longer the couple agrees, the
more expensive it will be.
The fees already include their mediation sessions, preparation of the Marital
Settlement Agreement, and preparation of the Petition, disclosure documents
and the judgment and court filing fees. However fees for consultation and review
if an attorney is hired are an additional cost.
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Normally, the court will look at the type of home that you and your partners are
currently using. Most likely, the judge would like to know who among you could
give not only a house, but also a home to your child. The court would examine
the status of your living situations in terms of size, characteristics, safety and
proximity to essential resources.
Most likely, the court would also examine how stable would be the life of your
child if he or she would be staying with you for a longer time compared to your
partner. A big factor would be how therightful custodianbe able to maintain or
help the child to easily adjust to changes.
Another important factor related to the stability of the childs life would be your
schedule. Of course, thecustodianshould be responsible enough to give physical
and emotional attention and support to his or her child. What the court wouldexamine is how flexible your schedule would be if you will be the one to take care
of the child.
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There are several factors that the court might consider aside from these, such as
your financial stability and even presence of criminal records. However, when all
of these factors would be seen as equal for both parties, the childs preference
would be the determining factor for his or hercustodianship.
Always remember that preparation for thechild custody hearingis important for
you to be able to let the court see that you are the rightful custodian of your
child. By being prepared before the hearing, you could easily get rid of negative
things that would affect your qualifications for this matter.
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