Divorce Planning: A New Rage?

Planning for a divorce?  You bet!  Failing to plan for your separation or divorce is just asking for a very tough separation process.

When separating or divorcing, the emotions of the process may focus on the damaged relationship, the other person, revenge or other target that is tied to the past.  At the same time, there can be a real hope for the future to be better.  Planning for that future should include planning out the separation or divorce.

In addition to the financial planning that must occur, if there are minor children, then significant planning for their future also will be required.  Mediation is one of the best processes to utilize in order to address the comprehensive needs of children.  Why?  Mediation can facilitate agreement between parents that cover a greater number of areas than a court can cover.

Case in point.  A recent post came from divorced parents whose graduating senior was angry that the non-custodial parent was not paying his college tuition.  The parents were confused about why their son thought that they would be paying for his tuition, housing, food, etc. and was accusing them of violating their divorce decree.  The son was confused because some of his peers’ divorced parents had mediated their divorce disputes and included, as part of the agreement they worked out themselves and that was approved by a court, a commitment to fund portions of the children’s higher education.  The parents were confused because the issue of higher education had not been part of their thought process nearly a decade earlier.

Planning, particularly for children’s needs, is important.  Further, managing children’s expectations through separation, divorce, and beyond, remains an ongoing point of planning for caring parents.  Mediation can assist parents with working out their own problems in a way that will work for them and their kids.  And parents know their kids better than any judge possibly could!

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File for Divorce or Mediate Before You Separate?

No one teaches you how to break up.  In love and war, emotions play high.  Often, a race to the courthouse to file for divorce can occur.  But, there is another way to break up that may not only be in the best interests of “the wallet,” but also in the best interests of any minor children involved.

Parties can file divorce on their own (or pro se), but more often than not, at least one spouse will retain an attorney.  The attorney’s retainer is rarely less than $5,000.00.  Not every couple has a spare $10,000.00 to spend on two attorneys – and the retainer is likely just the beginning. 

Sure, you’ve seen billboards that announce that attorneys will represent you for a few hundred dollars if the divorce is “uncontested.”  The second there is any dispute – holidays with the kids, the amount of child support, who gets the debt – it’s a contested divorce.  Simply put, it is the rarest of occasions that a couple’s divorce is uncontested, at least for the billboard attorney.

But, one way to set up an uncontested divorce is to mediate before (or during) separation – or at least before a petition for divorce is filed.  For about $1,000.00, a mediator can assist the couple with working out the details of their split – the debt, the assets, the children, the retirement, the house and furnishings, etc.  When couples have already gotten most, if not all, of these issues worked out on their own, they are well positioned to avoid a big legal battle that simply drains the pot of money that they are fighting over (okay, or usually are fighting over). 

Check out www.mediateB4Useparate.com for more information on mediation in the context of separation.  There is at least one other way to break-up, other than making a mad dash for the courthouse to file for divorce:  it’s Mediation.

New Panelist Barbara Ellenberg joins One Mediation

Barbara EllenbergMs. Ellenberg has practiced law in the State of Georgia since 1989 and also serves as a mediator and arbitrator of disputes. She graduated from Emory University and earned her law degree from Georgia State University. Ms. Ellenberg personal background has served her well in providing legal counsel to
business clients and for mediating business disputes as she, in addition to practicing law, owns a successful wholesale business which was co-owned for a long period with her ex-husband. This experience with a family business resonates in her corporate and domestic/divorce mediations.

In conjunction with Ms. Ellenberg’s corporate law experience, she has a specialization with intellectual property and trademarking issues. Her understanding of this special legal field has served business disputants well in an age where technological advances create new and unique business disputes that are time sensitive and cannot wait for trial. As such, she has been an effective deal-maker in these kinds of business disputes.

Ms. Ellenberg is available to mediate on weekdays and weekends. Click on the Schedule button above to review her availability for mediation services.

New Panelist Cynthia LeMay joins One Mediation

Cynthia LeMayMs. LeMay’s professional career in negotiation makes her uniquely positioned to arbitrate and mediate. In addition to negotiating union contracts, Ms. LeMay has brokered multi-million dollar deals for businesses and individuals. Her financial background serves parties well when a business dispute or family matter is being worked out. In today’s economic climate, her knowledge of business, tax, and related legal matters has proven invaluable to parties who seek to work out their own resolution in lieu of prolonged litigation.

With her successes in corporate negotiations, Ms. LeMay has been called upon to mediate high-income couple’s divorces. She has assisted parties with unraveling their highly entangled finances and business ventures, and enjoys assisting any divorcing parties with the equally important issues of
co-parenting. Ms. LeMay specializes in QDRO’s (Qualified Domestic Relations Orders), which involve division of benefits such as retirement. This expertise resonates with parties whose longer-term marriages have dissolved.

Ms. LeMay also has extensive experience with employee benefits and Human Resources issues, such as EEOC Charges of Discrimination, Employee Recruitment and EAP programs. She not only holds Series 7 and 63 NASD licenses, but also holds a certification as a Senior Professional in Human Resource Management (SPHR). Ms. LeMay has been a registered mediator with the State of Georgia since 1993.

Ms. LeMay is available to mediate on weekdays and weekends. Click on the Schedule button above to review her availability for mediation services.

New Panelist Vickie Wiggins joins One Mediation

Vickie Y. Wiggins is an investigator with One Mediation who specializes in workplace investigations. Ms. Wiggins has practiced law in Georgia for over 15 years and has a sub-specialty in employment and immigration matters. As a trial attorney, she has worked on numerous class action and individual lawsuits involving large corporations. Through these cases, she has developed a keen understanding on how to collect relevant information through the review of documents and interviews of witnesses. These skills serve her well with respect to conducting workplace investigations into allegations of workplace misconduct – such as harassment, discrimination and retaliation – as an impartial third party. With respect to her investigations, Ms. Wiggins may be engaged not only to evaluate allegations of workplace misconduct, but also to:

– make recommendations relating to training gaps or needs;
– make determinations as to whether a workplace policy has been violated;
– make recommendations with respect to corrective measures, if applicable;
– make recommendations of amendments to workplace policies.

Ms. Wiggins neutral services also include mediating and arbitrating disputes. Her specialization includes conflict resolution of business and commercial disputes, divorce and family law matters, personal injury and wrongful death, insurance and contract disputes.

New Panelist Teri Fields joins One Mediation

Teri FieldsTeri Fields began practice as a law clerk for the Bankruptcy Court for the Northern District of Alabama. She then went on to practice law in the Creditor’s Rights, Workouts and Insolvency Section at Burr and Forman, LLP in Birmingham, Alabama. Ms. Fields then moved back to her hometown of Atlanta, Georgia where she began practicing as an Associate in the Construction Law Group of Freeman, Mathis and Gary. From there she moved to the Georgia Department of Law where she served as an Assistant Attorney General in the Real Property, Construction, and Authorities section and conducted litigation as well as served as general counsel for several Georgia Authorities. In June 2009, Ms. Fields opened the Fields Firm which specializes in general civil litigation, estate planning and probate litigation. Ms. Fields joined Townes Davis & Associates in February 2010 where she has added personal injury and premises liability to her practice.

Mediation Preparation in Divorce

The financial aspects of divorce have all of the charm of an IRS Audit. 

In a divorce, both the assets and the debts of each spouse must be inventoried.   Each item in that inventory must then be analyzed for reasons that it may not be subject to division between the parties (e.g., will it matter when the item was acquired, was a gift or an inheritance, etc.).  Then, what will be an equitable split of the assets and debts that are subject to legal division is the ultimate issue.

To get through these steps, spouses must do quite a bit of leg work to gather all of the relevant materials.  Tax returns (including businesses), bank and brokerage statements, bills of sale, as well as documents that reflect pension information, mortgages, car/boat loans, business loans must be gathered.  Additionally, other items of value have to be documented – jewelry, art, cars, major electronics.   

In a divorce, just like any audit, it simply is necessary to obtain all the financial records.  Many people have not kept their records in a manner that is ready-made for a divorce.  Indeed, financial problems directly contribute to the divorce rate.  It simply takes time to ensure that all assets and debts have been identified and documented, particularly when spouses never considered that having records for all of these things would be needed. 

Simply put, once separation or divorce is contemplated or initiated, spouses need to begin the process of reviewing not the health of their finances, but rather reviewing the health of their financial documentation.

Mediation Coaching: A Money Saving Confidence Boost

In today’s economic climate, more married couples are attempting separation and divorce without an attorney to save money.  If they are successful in starting the divorce proceeding by properly filing for divorce, they may quickly find the court ordering them to participate in mediation (if not also a parenting seminar).  Most individuals have never heard of “mediation,” and the already scary process of DIY divorce can become even more daunting! 

The reality of a DIY divorce is that mediation may be the best thing that happened to them, but only if they know how to use a mediator’s services in their divorce.  Googling mediation doesn’t do much to assist DIY’ers on what they really need to do to get the most out of mediation.  What they need is someone to tell them what they need to do to prepare for the mediation session, what to expect, and what can potentially be addressed at mediation.  They need their own coach – a mediation coach!

Mediation coaching is something that is not commonly offered, but is woefully needed.  In divorce mediations, the amount of preparation needed before the mediation is significant when it comes to splitting up the assets and debts.  Many people need help to figure out what they need to do in advance, what documents they will need, and what kinds of inventory lists will be needed, etc.   When parties do not have an attorney, they often do not have someone that can tell them what to expect at mediation or someone who can answer their questions.  A mediation coach can help and can be a cost-effective tutor that makes mediation a productive process.

Since the mediator’s neutrality can be compromised if he or she provides coaching to one or both sides, a mediation coach is a great solution to the preparation quandary.  Parties should consider retaining a mediation coach for one to two session in the weeks before the scheduled mediation. 

Some Georgia mediation firms that offer mediation coaching include:

www.onemediation.com

http://www.21stcenturymediation.com/service.html

http://www.mediationservicesga.com/mediation-coaching.html

Mediation and Confidentiality

Confidentiality in mediation can be a tricky subject. If, in the mediation, liability is admitted or a particularly bad fact is disclosed – can it be used at trial? Or, can an incriminating statement made in mediation be used to impeach a witness/party during a late deposition?

Arguably, such “free speech” at a mediation can be prevented from being admitted into evidence through a variety of objections, motions in limine, etc. The admissibility of such statements also may be subject to varying State laws. However, it may be better (and cheaper) for attorneys to prepare clients to avoid this legal scenario altogether. But, avoiding major admissions at mediation may also be important for a psychological reason.

If major admissions are made in mediation, then the admission should be made with tactical precision. To do otherwise may result in the opposing party becoming more entrenched in the battle, not the negotiation. The motivation of the opposition can be altered with major disclosures in its favor – shifting from a spirit of resolution back to a continued pursuit of the jugular.

But, some might question whether parties should enter the mediation process with the intent to withhold information that would assist in all parties’ assessment of their positions. If parties participate in mediation with the premediated intent not to disclose information, have those parties undermined the process of mediation itself?

Weigh in…

Mediate Criminal Cases?

On March 19, 2010, the revered Emmet Bondurant addressed the Litigation Section of the Atlanta Bar Association. During his presentation, he made an appeal to attendees to do pro bono work, but with a caveat: do not do indigent criminal defense work on a pro bono basis that otherwise should be done by the State (and at the urging of Sonny Perdue who claims that the State cannot afford to pay for the defense of the indigent). This call to aid those in need, but not everyone in need, does have its logic.

Mr. Bondurant’s call to serve, but with a caveat, is in line with other esteemed minds in the legal community. Not long ago, for example, Leah Sears indicated that certain budget cuts to courts could be unconstitutional. So too, Mr. Bondurant’s rally not to do indigent defense work on a pro bono basis also has a constitutional basis. Mr. Bondurant explained that to do this work pro bono would, in effect, relieve the State of its constitutional obligation to defend the indigent and enable it to avoid its constitutional responsibilities when budgets are tight. Thus, to borrow from psychology, to defend the indigent at the Governor’s behest enables unconstitutional behavior.

In such a stand-off, unfortunately, it is the poor that have the most to lose.

Might there be another alternative that both sides could support? It could be greater mediation of criminal matters. The American Bar Association has proposed such measures and assisted with the implementation of such mediation programs in other states. Could it work in Georgia, too? Would mediation assist the State in meeting its constitutional obligations while making its budget? Perhaps.

Jack Hanna, a mediator and member of the American Bar Association, has written about the ABA’s involvement in mediation of criminal matters and the success of such programs in Minnesota, among other jurisdictions. Mr. Hanna’s article on ADR in the criminal arena, “Mediation Works In Criminal Matters,” can be found by clicking here. Maybe it is time for Georgia to check out its alternatives.