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What are the dispute resolutions?

You have choices and options to arrive at your separation agreement.A smart divorce means doing the research and gaining the understanding of these options so that you are making your decisions with confidence.

Do it yourself

This is the situation when separating couples to try reach an agreement without legal counsel.When I conducted my research for my book, The Smart Divorce, not one lawyer recommended this option. They didn’t support this option because they felt it is imperative that people understand their rights in terms of what they are entitled to and financial responsibilities and obligations with regard to spousal support and child support.For example, you could be giving away or not getting your most important assets; you might not be doing what is in the family’s best interest.If you do decide to go this route, you should at least consult with a lawyer first to get independent legal advice to understand your rights.

Negotiation

Think of negotiation as taking your wish list regarding how you divide your assets and what your parenting responsibilities should be and use this list as a starting point for what you end up with. It’s me and my lawyer versus you and your lawyer finding a compromise– all with the goal of reaching an acceptable middle ground.It’s me versus you with our lawyers beside us.Usually, we’re both trying to get as much as possible.

Now if you have to go to court, negotiation takes place too.The purpose of negotiation here is using it to avoid trial. When people file lawsuits there’s an expectation that there will be some maneuvering and bargaining and eventually a settlement will occur rather than full blown court with trial.The typical pattern is to use the threat of trial to get people to bargain and stay out of court.

Mediation

Mediation is using a mediator – It’s using the help of a neutral third party to help the divorcing couple reach a separation agreement together.A mediator is the problem solver helping the couple arrive at an agreement by helping them communicate with each other– a good mediator will help the couple identify issues and explore choices that they hadn’t thought of on their own.

Another benefit is that for some couples mediation is more cost effective because they are splitting the cost of a mediator, rather than paying hours separately with their individual lawyers.Many lawyers and clients like it because it gives both sides more control over the final outcome, but it does require that you be willing to work together, there is honesty and full disclosure about the finances.

A mediator can be a lawyer or a mental health professional.Most lawyers prefer that when you are mediating financial matters that your mediator be a lawyer.

Collaborative family law

The concept is that the lawyers work strictly toward settlement. Clients and their lawyers sign a contract in which they agree not to go to court, and to provide full and complete financial disclosure. The purpose of collaborative law is to create an environment in which the separating couple feels safe, in which both parties feel that they are able to make informed decisions about their own destinies, and in which they can work constructively despite their fears, anger, and feelings of revenge.

The lawyers fulfill their traditional role of advising their own clients on how the law applies to their individual situations. But they also help their clients to reframe their thinking–to develop goals as opposed to taking positions, and to make good and ethical choices. If either client wishes to end the collaborative process and go to court, both lawyers and other members of their firms must remove themselves from the case.

Arbitration

Arbitration is much like litigation in that you go to court in a sense, but it is outside of a courtroom. It is a private process. The divorcing spouses together with their lawyers pick a decision maker, who is usually a retired judge or senior lawyer with family law experience.

What happens in arbitration is that the decision being debated between the couple is imposed by the arbitrator.Unlike mediation, no one helps the couple come to an agreement; the decision is made for them. And, usually, if you don’t like the decision, it can’t be appealed which means, you can’t argue it out again for the decision maker to change his or her mind.

Litigation

I’m not saving the best for last; this is last because litigation is usually the option of last resort.Going to court.It’s emotionally difficult and financially, very expensive.

Who remembers Perry Mason?– when you’re up on the stand and your lawyer is asking lots of questions and all of a suddenthere is this aha moment by the judge and yes, it’s determined you are right and the other side is wrong and justice is served.It’s his word against hers and the battle starts from there.The lawyers try to poke holes in your persona showing that you are unfit.That’s why it is called the adversarial process.There is one winner, and one loser.It’s not a win – win situation. It’s a war and there are distinct sides.

Like arbitration, the decision is made by a third party.Unlike arbitration, you can’t pick your decision maker and the judge doesn’t always have family law experience.Another difference is that arbitration is private, going to court is public.Being public means that there is a public record of the dispute.

For a more comprehensive analysis of the dispute resolutions readThe Smart Divorce: Proven Strategies and Valuable Advice from 100 Top Divorce Lawyers, Financial Advisers Counselors and Other Experts (available wherever books are sold)


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The Shared Custody Experience

On this episode of The Smart Divorce with Deborah Moskovitch, our guest is Denise Whitehead, a lawyer with a Ph.D. in Family Relations & Human Development.  She combines her legal and social science backgrounds and shares her important research on socio-legal practice and policy issues related to separation and divorce that affect all members of the family system – mothers, fathers and children.

Denise Whitehead

Dr. Whitehead discusses her dissertation research that involved in-depth interviews with young adults who spent time in shared custody as children and examined their perspectives on transitions, relationships and fairness.  The information is helpful on so many levels – but most importantly looks at what children really want, the outcomes and impact.

Topics in this program include:

  • How shared custody is influencing parent child relationships
  • Fairness in decision making
  • What children want in a custody arrangement
  • The importance of quality time with children
  • Who “owns the time”
  • ‘Managing-up:’ Young adult children who experienced shared custody reflect on their efforts to make family relations work
  • Custodial decision-making and fairness: Young adults who lived in shared custody give their ‘expert’ opinions
  • And so much more…….

This is a must listen show if you are thinking of, working through or implementing your parenting plan.  Dr. Whitehead provides practical and creative thinking about parenting and the relationship with your children.

To listen click here

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Divorcing Santa – Coparenting Through the Holidays Post-Divorce

My colleague Traci Whitney, founder of  Two Happy Homes has kindly submitted this article.

Please share your thoughts….how do you celebrate the holidays?

Wishing all my readers happy holidays and all the very best……Deborah

By Traci Whitney

Divorce is tough through any time of the year, but getting through the holidays post-divorce can be particularly rough.
This a time of year when you no doubt have a lot of mixed emotions about your ex, and maybe even some holiday memories, but whether they bring fond or sour feelings, this is the time when it’s necessary best to put the children first. Even though you may feel like steering clear of your ex right now, there is a lot going on with the kids, so you may have no choice but to work through some seasonal logistics. Being an excellent co-parent through the holidays may take a little extra effort, but it will make this time of year more peaceful for the whole family, including yourself.
Here are a few tips for peaceful coparenting through the holiday season…
1. Plan the parenting schedule ahead of time. Now is the time to be talking about who gets the kids when over the holidays. Chances are, you already have these days figured out in your parenting plan. But if you don’t, then get this discussion out of the way now so that you both know what to expect when the holidays are upon us. This way you can let any other loved ones know what the schedule is, and everyone can plan accordingly. Getting the parenting schedule out of the way now allows you to enjoy the holidays later.
2. Make two lists, check them twice. If your kids make wish lists for presents – have them make two separate lists – one for each house. If there is one “master” list, then it can create stress between parents… Who saw it first? Who gets to pick out the kids top choices for gifts? Is there enough gifts on the list for two homes to split? What if you buy duplicates and the kids get upset about that?… it can get downright crazy. Have the kids make two lists, or if everyone is agreeable to one parent splitting the list between homes then that is fine too. Tell the kids ahead of time that if they get the same gift at both houses then that’s ok, sometimes just a little heads up can diffuse the situation ahead of time.
3. Communicate with your coparent about gifts for the kids. If your teen really wants to get concert tickets, and you’re considering shelling out a significant amount of money to buy them for her, then it’s best to make sure that your ex doesn’t have the same plan in mind. Keeping in touch now can make sure you avoid possible conflicts during the holidays, and we want to kids to enjoy them as much as possible.
4. Consider splitting the costs for big ticket items, but only if that item is easily shared between the two homes. Don’t agree to pitch in to buy a child a bike or a pet if it can really only stay at one house, this may lead to resentment later on between parents. A doll, electronic toy, or books can entertain kids at either house.
5. Don’t stress about spending money. There are a lot of resources out there for cutting costs over the holidays. One of my favorite places for finding new ideas is Pinterest. Check out blogs for tips on how to save money on gifts. This is an area that you have control of, in a post-divorce world that is not always easy to control, so take advantage of it and do some research and planning early. That way you can enjoy the holidays instead of dreading them!
6. Don’t put the kids in the middle. This is a special time of year for kids, and if you and your coparent are arguing about schedules or gifts, then the magic can be sucked right out of the holiday pretty quickly. Make sure to keep any discussions private so that your kids can enjoy the holidays stress-free.
7. ‘Tis the season to be jolly. This is my favorite time of year, and I’ll admit that being divorced, dealing with family schedules, blended family issues, etc., etc.,  can be quite stressful. Take some time to do the things you love around the holidays, even if that means springing for a babysitter for a few hours so you can have some time to yourself. For me, this means wrapping presents with some eggnog and watching It’s a Wonderful Life – simple, but this is something that I have made my own tradition post-divorce, just for me. I also take time to create traditions for just me and the kids, so they have the joy (and stability) of memories created year after year.

 


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What Parents Can Learn From Hurricane Sandy

The Huffington Post Asked: Divorce professionals: Do you think Hurricane Sandy emphasizes the need for a disaster-preparedness plan between co-parents? Share your thoughts!

This was my response – 

Divorce Coach, Author, Speaker, Guide, Radio Host

The massive storm and colossal damage inflicted by Hurricane Sandy caused major devastation for many. Yet, despite the pounding that so many experienced, the outpouring of help I read about was admirable, illustrating the importance of standing up in the face of adversity and supporting one another. The media did such an incredible job of depicting the rarely seen humanity of neighbors helping fellow neighbors. The also showed the lineups post-Sandy for pay phones as she cut all power, rendering cell phones useless for many.

This got me thinking about the many life events that, if not prepared for, could wreak havoc in our lives. What if there was a disaster — what would happen to our children? Who would be responsible for a rescue plan– me or their father? What if one of us became seriously ill, who would take care of our children? What about eldercare — if one of us co-parents suddenly had to take care of our parents for a short time and couldn’t focus on our children, who would? The list of “what ifs” became dizzying, as I began to think about the various scenarios that could cause colossal damage to our family life.

A disaster preparedness plan is something people don’t talk about; it’s something we probably don’t even think about. But there are lessons to be learned from this disaster. As a divorce coach, my role is to guide people to positive outcomes for a happier, healthier future. So I’m going to suggest to all of my coaching clients that they think of a “what if” plan in case of an emergency — a contingency plan for themselves and their children’s mental and physical health and well-being.

Having a plan will ensure that parents know who is responsible for what. Think about:

  • Who is going to be responsible for the children when calamity strikes if you are in the middle of other commitments.
  • A communication back up plan you can rely on.
  • “What if” scenarios and back-up plans in your parenting arrangement. Don’t wait to make a plan when crisis strikes, do it before; it’s like an insurance plan. You hope you never need it, but it’s there just in case. Make decisions when you are calm and can think straight, rather than when disaster strikes and you are panicked and can’t think.

Hurricane Sandy was nasty and caused long term and permanent damage. We could look at this storm metaphorically as a high conflict divorce. The storm represents the conflict between parents, and the devastation that results is inflicted upon the children, who might not come out unscathed. Perhaps this is the underlying message, that parents need to get along, co-parent and work through the storm and destruction together.

Forward thinking and having a plan will go a long way.

I wrote this article in response to a question posted by The Huffington Post: “Do you think Hurricane Sandy emphasizes the need for a disaster-preparedness plan between co-parents?” I shared my thoughts, now would love to hear yours.

This article first appeared in The Huffington Post

Deborah Moskovitch is a Divorce Coach and founder of The Smart Divorce — providing cost effective resources and powerful educational tools to empower and free people during this difficult time. To learn more, visit Deborah on the web at:

Website: http://www.thesmartdivorce.com
Facebook: http://www.facebook.com/pages/The-Smart-Divorce
Twitter: http://twitter.com/thesmartdivorce
Listen to The Smart Divorce on Divorce Source Radio at www.divorcesourceradio.com