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The Good Divorce
Newsletter Notes - August 2005
In response to our clients requests and in our continuing efforts to keep our existing clients as well as our potential clients apprised of issues in matrimonial and family law as well as our own thoughts and conclusions based on several years of mediation and litigation experience, here is our Mediation Associates' Newsletter Notes from August 2005. Look for our Newsletter Notes on blame - grounds for divorce, custody and child support in November, December and January.
I am very aware that the title of this piece of our newsletter sounds like an oxymoron; that the term "good" and the term "divorce" cannot belong together. However, in my several years of experience as both a practicing attorney and divorce mediator, I can tell you that such a concept as the Good Divorce exists. In my practice, we see such a concept in real practice every single day and it is a wonderful feeling to be part of it!
What About When There Are No "Bad Guys?
Nobody gets married with the expectation that one day, their marriage will be over. Nobody wishes that - not one client that we have ever had married with that thought! Sometimes, a marriage just fails and it is beyond blame and sometimes there are simply no "bad guys." It is difficult to reconcile such a situation. However, the cost of not reconciling that situation leads to further hurt and tremendous cost. Minimizing the cost, controlling the damage, and paving a new road for the parties is what mediation can do.
To Hurt and Do Harm
How do I define a "good divorce?" That is a divorce in which the parties, for their own good and that of their children, rise above the need to do each other harm simply to harm each other. That's all it takes - the foresight and insight to know that vengeance and loathing breed upon themselves and are toxic, especially to children.
Newsletter Notes - September 2005
In response to our clients requests and in our continuing efforts to keep our existing clients as well as our potential clients apprised of issues in matrimonial and family law as well as our own thoughts and conclusions based on several years of mediation and litigation experience, here is our Mediation Associates' Newsletter Notes from September 2005. Look for our Newsletter Notes on blame - grounds for divorce, custody and child support in November and December!
Marriages end for a plethora of reasons - betrayal, fear, finances, disrespect, emotional baggage from a person's history - reasons too many to list here. The narcissistic wound caused to a spouse by the other spouse wanting out of the marriage, often will not be allowed to scab and then scar over.
Healing begins first with the scabbing over and if the wound is deep enough, then with the scarring over. If this healing does not occur, the wound continues to gape and the body declines. There must be a resolution of sorts or a downward spiral of illness follows, not just for the parents, but for the children as well.
The mediation process can help the wound to scar over. With each session, I have seen spouses heal and begin to make way for a new start. This is not true of the litigation process. Because litigation is by definition an adversarial system, it is not meant to leave you being friends, or even being civil and having the ability to co-parent effectively. Examine the priorities. You are both parents of the same children and will be forever. The children need you to be able to co-parent.
I am always asked if the divorce screws up the kids and I answer that the question is probably more appropriate to ask the therapist. However, in my experience as a mediator who keeps in close contacts with my clients as they move through the years, it is not the parents living separately that makes the divorce toxic to children, but rather the "subtle" messages and intonations - the happy, "Hey kids...Daddy or Mommy is here...Have a great time...see you later!" or the subtle and nasty "your miserable father/mother is here." It is the parents' attitude, not the divorce that "screws up" the children. Talk to the therapist. Get a handle on how to think about the divorce and get the tools that you need to help yourself help your kids. There is life after divorce.
Newsletter Notes - October 2005
In response to our clients requests and in our continuing efforts to keep our existing clients as well as our potential clients apprised of issues in matrimonial and family law as well as our own thoughts and conclusions based on several years of mediation and litigation experience, here is our Mediation Associates' Newsletter Notes from October 2005. Look for our Newsletter Notes on blame - grounds for divorce, custody and child support in November and December!
Find a Way to Love the Children More than You Hate Each Other
King Solomon's Decision
I have seen judges in disgust over parties in a divorce case fighting over custody of their child/children. Judges understand that nobody can judge what is in the best interest of the children better than the parents; that is, if the parents are able to put the children's needs before their own.
"A Pox on Both Your Houses"- W. Shakespeare
I have watches judges scour the faces of the parties looking for a sign that at least one of the parents is able to put the child first - and when a judge sees neither party able to do so, it means he or she must simply choose the lesser of two evils. It is awful to win custody simply as the lesser of two evils.
Unless one party is unfit as a parent, whereby neglect or abuse needs to be proved in court, there is no reason for a judge to have to decide custody of a child born to two people who love that child. Mediation can help the parties work through the many types of custody in a constructive and kindly manner, making sure that each parent gets quality time with their child.
Newsletter Notes - November 2005
In response to our clients requests and in our continuing efforts to keep our existing clients as well as our potential clients apprised of issues in matrimonial and family law as well as our own thoughts and conclusions based on several years of mediation and litigation experience, here is our Mediation Associates' Newsletter Notes from November 2005. Look for our Newsletter Notes custody and child support in December!
The Blame Game
Assessing blame is a common and typical part of the divorce process. It is also at the basis of our legal structure in New York. In order to move past the threshold issue in a divorce, grounds must be pled and proved. Most of the grounds required to get a divorce in New York are what we term "fault" grounds - abandonment, imprisonment, cruel and inhuman treatment, and adultery. (There is only one "no-fault" ground and that is the living separately and apart pursuant to the terms of a duly executed Separation Agreement and substantially complying with those terms.)
The most important thing to understand is that establishing "fault"grounds simply allows the parties to move to the next step of the legal divorce - it does not punish the "faulting" party either financially or in any other manner, unless the fault was so unconscionable as to shock the conscience of the court - and that takes a great deal! The law cannot legislate morality and in the matrimonial arena, does not even try.
In our private traditions, perhaps marriage is a sacrament or a sacred communion of souls, or the standard for moral purity and the genesis of the family. In the eyes of the law, marriage is basically a fiduciary arrangement whereby certain rights and obligations are triggered. That's it...that's all. The Court usually wants to just do the numbers and get out! If a party is looking for a pound of flesh, or moral justice - they will usually be sadly disappointed! The Court does not wish, outside of egregious and abusive circumstances, to immerse itself in the slippery slope of blaming or defining marriages and what goes on inside them. Take these decisions into your own competent, adult, and rational hands, if at all possible and constructively compromise to come to your own agreements. It is better for everyone's future.
In order to qualify for a New York uncontested, "no-fault" divorce, both parties must agree to the divorce, division of all marital assets, debts, property, custody of the minor children, support for the minor children and spousal maintenance. In an uncontested divorce, the defendant can be served but if he or she does not answer the complaint in divorce then the plaintiff can seek a default judgment in divorce. The defendant can also waive his or her right to answer the complaint.
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