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Innocent Victims of a Litigious Divorce - The Children

"The war of the Roses" depicted every couple's worst nightmare. Two people who were once in love are engaged in a major battle where both sides lose. Divorce is second only to death as the most stressful of life's experiences. And litigated divorce increases the emotional stress many times over due to the hostility generated and the high financial cost. This is the tragedy of an acrimonious divorce. Each side hires a lawyer as their hired gun.

There is an alternative to the bitter, acrimonious litigated divorce. Divorce Mediation mitigates the lengthy, costly and often damaging effects of a litigated divorce because it is more efficient and is sensitive to the emotional toll placed on spouses and their children. Couples are encouraged to communicate directly to one another thereby by-passing the indirect and expensive client-to-attorney-to-attorney-client communication chain. Our approach to mediation combines the psychotherapeutic skills of a psychologist and the legal skills of an attorney so that all aspects of dissolving a marriage can be addressed: legal, emotional and financial. The co-mediators are specially suited and trained to safeguard the best interests of the children, and acknowledge a couple's pain associated with a divorce without allowing those emotions to control the settlement procedure.

In the mediation sessions, the focus is on reaching mutually acceptable resolutions to the issues at stake-- division of property, parenting plans, child support and spousal support. The co-mediators guide the parties in arriving at short-term and long-term resolutions to their particular concerns. Specifically, the co-mediators and parties evaluate the couples present financial circumstances and provide for their financial needs. Taking the future into account during the present mediation sessions makes it unlikely that the parties will return to court years later to modify the final settlement terms.

When their parents decide to divorce children always suffer. The damage can be mitigated, however, when both parents remain focused on the best interests of their children. Many experts believe that it is not divorce, but the ugly legal battles between parents that makes children the unwitting causalities. Too often, they grow up unable to form and sustain long-term relationships. Parents in litigation expose their children to violence and conflict. Many children feel responsible for their parent's divorce. Therefore, when children hear and see their parents insult, threaten and scream at each other, they bear the brunt of those attacks. Children tend to blame themselves for the acrimony between their parents. Even when parents believe that they are not putting the children in the middle. Children hear the arguing and experience the lack of affection between parents and therefore feel threatened. Their security is at stake. This creates internal emotional instability.

Litigation forces parents to become adversaries where children become objects to be owned. Divorcing parents are often consumed with fear and anger. Litigation fosters these feelings. Parents may go to any length to get their children to love them. They speak derogatorily about the other parent. They paint an ugly picture of how bad the other parent is. They may pressure the child to love only them. In a litigated divorce, children frequently feel compelled to choose between two parents. And parents often use their children as weapons or as a way to get "back" at the other parent.

Mediating a divorce can spare children these wounds and drastically reduce their pain. During mediation parents learn how to negotiate. Mediation does not pit one parent against the other, making continued co-parenting possible after divorce. Mediation redefines "custody", calling on each parent to "share time"with their child. Since no parent is a loser, ugly litigation tactics are not necessary. In mediation, the emphasis is placed on the children's best interests, producing a positive win/win outcome for the entire family.

Parents serve as models for children. When their is dissension between the parents, children feel that this is the way adult relationships are. It forms an imprint in their mind for future relationships. On the other hand, when children observe parents communicating amicably, negotiating rationally, and demonstrating respect for one another, this serves as a model for their future behavior. They can learn to understand that Mommy and Daddy may not live together any longer, but they can remain friends. In this scenario, children then only have to deal with the fact of the divorce, not conflict as well.

Mediation teaches parents how to negotiate, how to stay focused on the issues, how to listen to one another. Mediation shows parents that people can come to agreements without acrimony if they are willing to examine the issues and interests that need to be taken into account. Most couples tend to take positions with one another, rather than focusing on getting their interests met. When looking to solve problems while meeting ones own interest, it is often necessary to consider the interests of the other party. Sometimes it is necessary to meet the interests of the other party. Sometimes it is necessary to meet the other person's interests in order to have one's own interests met. For example, if a man wants his wife to become financially independent of him, in the short run it might be necessary for him to provide financially in the beginning.

When taking positions, we become adversaries and no ones interest are served. When taking a position, the being right and winning becomes more important than the relationship that is established. Divorcing parents often forget that they will have to be in a relationship with one another for the rest of the child's life. How they handle the divorce will often determine the quality of that relationship in the future. There will be many occasions- birthdays, graduations, confirmations, bar/bat mitzvahs, weddings- where parents will have to relate to each other in the lives of their children. While they will not be husband and wife, they will always be parents.

During mediation the couple is encouraged to keep their focus on the future, rather than only on the immediate. Throughout mediation the interests of the children are always paramount. Mediators continuously remind conflicting parents to focus on interests of the children, rather than holding to fixed positions.

Mediation offers the best possibility that divorcing parents will be able to experience the joys of parenthood together, despite their divorce. In many ways, being willing to mediate a divorce and learning the process of negotiation, can be thought of as a gift to the children of the divorce. It sends a message to the children that though their parents may not want to live together any longer, Their interests are still being considered.


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California divorce laws recognize that both spouses make valuable contributions to any marriage regardless of their employment. Property is labeled either "community property" or "separate property." Community property is all property, in or out of the state, that either spouse acquired during the marriage. Each spouse owns one-half of all community property. It does not matter if only one spouse worked outside of the home during the marriage or if this property is in only one spouse's name.
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