Archive for March, 2010
Texas is a “No-Fault Divorce” state. Basically, that means either spouse can determine they want a divorce and can get it regardless of how the other party feels. On the surface, that sounds unfair. In reality, it probably is best for both parties. No one can be forced to truly work on a marriage if, in their mind and heart, it is over. You can also file “for cause” in Texas. The most common “cause” is adultery, but it could be physical abuse or mental abuse or other options. You should speak with your attorney about the benefit, if any, of filing for cause. Which brings me to today’s topic.
During the divorce process, involved professionals will hear:
He is a control freak and I will not let him control this divorce. She has run up credit card bills all our lives and I will not give her xx%. He has had affair after affair and I want him to pay. He has been mentally abusing me the entire 20 years of our marriage and he should have to pay for it. I want him to acknowledge what a good mother I was and really mean it. She has done nothing but spend money, the house is always filthy, and the children are wild. After 20 years of this I am done and she is not getting one penny of my money.
And we listen and we know the regurgitating is beneficial to the person airing their grievances. We also know, and divorcing spouses soon realize, a divorce is not the venue for payback, punishment, getting even, and certainly it is not about changing the spouse being divorced. It is about dividing the property, looking to the care of the children, and moving on to a new life. That realization is probably the hardest reality a person will ever have to deal with. You cannot stop it and you cannot right all the wrongs that may, or may not, have caused it. Just reading it hurts and I know that.
The person who has worked hardest on the marriage is frequently the person who wants/needs recognition for their efforts and it never but never happens. Remember, you are divorcing the same person you are married to and a getting a divorce does not improve character. If you have not been able to improve it during the marriage, it surely isn’t going to happen during the divorce. Continuing to want to pay back, punish, get even or change him/her will only continue to hurt the person trying to create the change and justify to the other spouse the reason for the divorce to begin with. The person you are divorcing, whether you or he asked for the divorce, obviously like themselves just the way they are. And, hopefully, so do you but you don’t have to like them, even if you do still love them. Love and Like do not always apply to the same person – hence, divorce.
You need a good counselor to help with these issues. Call me and I’ll give you some good recommendations. 713.599.1220
Mediation is a process for settling disputes of almost any nature. Fist fighting or going to court are other, less desirable, processes. Mediation always involves the two (or more) people involved in a dispute and a mediator. Almost everyone has at one time or another been involved in mediation – provided they have a family with three or more members. A mother with two or more children has handled more mediations than she would care to talk about. So, don’t be worried or fearful of mediation. You’ve done it many times before.
Divorce mediation generally will take one of two forms, depending on who is “driving” the mediation. If attorneys are involved, it will generally be “caucus” mediation. Otherwise, it will generally be “early intervention” mediation.
The format for Caucus Mediation is one attorney and client in one room; the other attorney and client in another room; and the mediator, also an attorney, going back and forth between the two rooms. The job of the mediator is to “settle” the case and the percentage of cases he settles determines, to a large extent, the number of mediation cases he gets. It is a good format when the anger or animosity between the two clients is so great it prevents them from being civil to each other long enough to reach any kind of agreement. The mediator will try to gain both parties’ trust and may say exactly the same thing to both sides to do so—that is OK. Both sides will start with a proposal that is incredibly lop sided to their favor and the “exchanging” begins. Finally, when both sides are exhausted beyond belief, a decision that will impact the rest of your lives will be reached. Consequently, it is imperative you and your attorney know before entering “your room” what your bottom line is and not be tempted to go below it. It is also imperative you not pay attention to “this is your last chance to settle your case yourselves” which is a favorite to get clients to “move” enough to get a case settled. Your last chance, in reality, is maybe 5 minutes before the judge says you are divorced. Many cases have been settled on the courthouse steps or at the kitchen table following a mediation that did not settle. More than one has settled in the middle of the judge hearing a case—not the best method!!
Early Intervention Mediation frequently is done before attorneys are even hired – but not always. Often attorneys recommend Early Intervention Mediation if clients wish to settle their case with the least amount of damage to the extended family. It involves one room with a large round table, the two people involved in the divorce, and the mediator – and sometimes their attorneys. It is an excellent method if both parties can at least “try” to communicate, there are no “legal” matters to be settled, and you have a trained mediator whose goal is not just to “settle” but to come to an agreement that will work financially for both parties and for the children, if any. That means the mediator must not only have training as a mediator but must also be a Certified Financial Planner, or have similar training. Each mediation session will generally last no more than three hours and may be completed over several days or months, if necessary. The cost is generally less than Caucus Mediation since three family law attorneys at their hourly rates are involved in Caucus and only the mediator’s rate at Early Intervention Mediation. It is also less exhausting and generally speaking, more civil. It does require, however, a very skilled mediator to keep the stronger party in the dispute from running rough over the weaker party. Or the “wronged party” from utilizing guilt to secure an unfair advantage.
Mediation, of one kind or the other is often utilized in Collaborative Law and is always – with rare exceptions – utilized in Adversarial Divorce since it is almost always mandated before the court will hear a case. And of course, the other type of divorce is “Mediation” as the form the divorce takes initially, and is, in this writer’s opinion, the best if the situation allows for it. Most attorneys, either Collaborative or Adversarial, agree.
Questions? Give me a call at 713.599.1220.