Category Archives: FAMILY LAW

BIGGER STRONGER WISER AND KIND

I heard a great lecture by a social worker exhorting divorcing parents to please, please put their children first.  To remember they are children.  I will summarize what I can from my notes:

Children need people who are bigger, stronger, wiser and kind.  They need adults who can take charge when necessary.  Adults they can rely upon.  They need a secure base to start from  Then they can go out and explore their world. You can enjoy that, and watch and help as needed.  Whenever they hit a stumbling block, they will need to come back and find a safe haven.  Once they check in, and get comfort, they will be ready to head back out and explore.

If they are worried about you – if you show them that are not handling things well, that you are sad and angry and hurt all the time – guess what?  They will hit that stumbling block, and they will not come to you for help and comfort.  They will not come to you for guidance. And it will be really hard for you, once they decide you are NOT a safe haven, to regain that trust.  More importantly, it will be hard for them to trust anyone, even once they grow up.  You might be relieved, you might be proud, to see them so self-reliant, but keep in mind they are children.  Not adults.

If you can only remember one thing, remember this:  Your job is to take care of yourself and your children. Your children’s only job is to be a kid.  So don’t take their childhood away from them for your own comfort.  You are a grownup, and eventually, you will put your life back together.  You have the tools, the resources and the power to do that.  But if you take their childhood, and turn them into a caretaker for you, they will not get their childhood back.  And they will end up caretaking others in toxic ways.  And it will break your heart, not only to see it, but to know that you set them up.

So if you remember only this, be the grownup.  Let them be the kids.

HAVING IT ALL

I see a lot of emotion in court.  Many people have hard lives.  They don’t have what we now like to call “social capital”.  They don’t have strong families, satisfying careers, reliable housing, good friends, or even good health.  They don’t have knowledge of the court system.  In family law cases, they don’t even have appointed lawyers.  And yet their kids are at stake.  Lots of reasons to break down and just feel overwhelmed.  My heart goes out to them.

But I have also seen those who seem to “have it all” sit and cry in deep, heartfelt sorrow.  Let’s take a wildly successful, well-respected and even honored professional in his field of choice.  With a lovely house and family.  A world traveler.  Healthy and relatively young.  The whole world at his feet, so to speak.  Splitting time between his demanding multiple careers and his wonderful family was a difficult task, but with the help of a top-notch personal assistant, he managed.

He seemed to have it all.  It sounds like a wonderful life, and it is.  It was.  Because now comes the divorce.  His brash young attorney has a great idea.  Father can still do it all and have it all.  Keep the house, the kids, the great career and his business ventures.  Nothing has to change.  The stay-at-home mom from another country can go back to where she came from.  The problem is, she is asking the court to allow her to take the children with her.  He opposes this.

The kids should stay put, dad’s young lawyer explains to the judge.  Their school friends, lovely home, and after-school activities are more important than mom is to them, at their ages!  Geography matters more than parents.  The attorney argues forcefully and repeatedly that it would be terrible to move these kids “across the world” when they are “born American”.  Their lives are here!  But that is not the law.

Our state parenting plan laws focus heavily on primary parenting roles.  There is nothing that says if the kid loves ice hockey you have to keep them near a rink.  We look at the strength, nature and stability of each parents’ relationship in determining the best placement.  Children cannot be split in two, in spite of what some parents may think.  They have to be somewhere, with someone, at every given moment.  They exist in space and time.  And if the parents are going to live in two different countries, thousands of miles apart, then the judge has a tough decision to make.

In this case, the judge carefully considered the relative strength, nature and stability of each parent’s relationship with the children, and determined that the children’s lives would be less disrupted if they join their stay-at-home mother in relocating to her birth country.  It helped that they had lived there for several years and had gone to school there, had extended family, and spoke the language. But the fact that the mother had dedicated herself to their upbringing and was closest to them was the central deciding factor.

And one sentence later, the man who had it all has lost the legal right to see his children grow to adulthood in his home.  He has lost the right to have his children live in the same city, the same state, or even the same country as him.  And like so many other parties to lawsuits I have seen, he sits and cries.  Yet another reminder that there is no one alive who does not suffer.  There is no one alive who deserves our envy more than our compassion.  And so my heart goes out to these “more fortunate” moms and dads, and to these children, too.

 

 

 

WATCH YOUR TONE!

My dear mother in my earliest youth used to warn me to watch my tone.  The implication, especially if she was gritting her teeth, was that if I didn’t watch my tone, she was darn well going to watch it for me, usually with a smart slap across the cheek.  There is a gift in every life experience.  Perhaps it was edifying for me to learn how to convey my full shade of meaning without getting slapped.  And I did learn.  As a young adult, I remember feeling quite complimented when a would-be suitor told me that I could “say the meanest things in the nicest words.”

My dear mother has passed away, but her desire to check our tone lives on, I just found out, in an application that custody-sharing parents can use to check the tone of their written correspondence. Yes, folks, there really is an application called ToneCheck™ that “incorporates semantic processing tools… to help reduce the potential for conflict or misunderstanding”.  They call it an “emotional spell-check” that can “identify and flag emotionally charged sentences” as you write.  They even offer alternate neutral phrasing so you can edit as you go.

A dear family member once showed me an email correspondence in which she had sent her ex a copy of their child’s dentist bill with a polite request that he pay his share.  His response had been “You are pathetic excuse for a human being.”  As the alternative meaning of “pathetic”  is “worthy of compassion,” I like to think the app may have transformed the loaded missive to “I am sorry.”  What the app cannot do is make the ex pay the dentist, but at least reading less crap from the old hound dog would provide relief that many parents would be happy to pay for.  And now the parenting plan can even indicate that parents MUST use such an app in their correspondence.  I love this idea.

We all say things we regret.  I remember my children telling me about an app that would make you do a few simple math problems before allowing you to send out any phone texts in the wee hours of the morning.  Presumably the app was to act as a gatekeeper to stop you from regretting what you send to whom at the critical hours of the night.  And many regrets are out there.  I like the idea of an app that can tone down your email while still allowing you to convey your message.

As my mother well knew, and this app advertises, “sometimes messages are misunderstood because of word choice”.  The point of both the slap and the app is to “prevent you from  saying something that you might regret” by detecting and flagging (or slapping) “emotionally-charged sentences”.  I am not a techie, as my close friends can attest, but I can safely say that I consider this new app a clear upgrade from the one used in my childhood.  It sounds more user-friendly while allowing us to save face.

IN COMMON

I had a week of mostly family law cases, including a trial, a mediation, and several highly disputed hearings.  So many stories, so much suffering.  The parents are present in the courtroom – the children absent.  The laws in my state are very clear.  The parenting plan must support the best interests of the child.  The custody arrangements are not meant to suit either parent’s particular needs.  Judges constantly remind disputing parents of this, but in the heat of the battle most parents keep repeating what they want, what they need, and how they have suffered.  It is rare that a parent focuses on the child’s welfare during the arguments.  Here are two stories out of many.

This young mother got pregnant, and at first the father said he was going to stick around and help her with the baby.  But their relationship turned sour, and she had to leave him.  She still tried to get him to come around and visit, but he refused.  He didn’t even visit when his son was in the hospital. She suffered, but as she is so hard-working, and thank God her family helped her, she has managed to raise her son to be a happy, sweet little guy.  Her struggles have paid off.  But now out of the blue, after abandoning them both, this guy shows up and is demanding overnight visits, just because he has a new partner and wants to pretend he is this great guy.  She, the mother, has earned her place in her son’s life, but as far as she is concerned, he has no father.  This so-called father doesn’t deserve to see his son.

Let’s hear another story, this time from a father.  This is a loving man, a caring person.  He tried to stay involved in his baby’s life, but her family was always interfering.  Eventually, her mother convinced her to leave him and take their child.  He tried to visit, but she would always find a reason why it wasn’t the right time.  Because they had never been married, there was nothing in writing.  So he just kept asking if he could please see his child.  He visited whenever he could, but her family had something planned every weekend, and he works all week, so he was just squeezed out of his child’s life.  Now he is settled in life, with a good job and a wife with another baby on the way.  He wants his first child to be integrated into his new family.  He wants his family to be united.  He has worked for this.  He deserves this.

What do these two stories have in common?  Well, these two particular parents are talking about the same child – the child they have in common.  The same little fellow who cries when he has to go to his Dad’s is the one who cries when he has to leave his Dad.  The same little guy who who cries when he has to go back to his Mom is the one who cries when he leaves his Mom.  Because he is being torn in two.  He is doing his best to please two angry, hostile people.  And he doesn’t have any siblings to share this experience with.  The new babies coming have different mommies or daddies and different schedules.  He is alone.  And the only person in this whole scenario who gets to decide what is in his best interest, and where he will sleep each night, is someone who has never met him, and never will.

As one judge said to the disputing parents this week, “I cannot make you two get along.  I cannot make you be good parents.  I cannot make you put your own needs aside and look out for the best interests of the child.  All I can do is formulate a parenting plan according to law.  It is up to you two to actually parent!”

FIVE MINUTES FOR YOUR LIFE

I was on the family law calendar for motions hearings.  As people head toward separation or divorce, or work out a parenting plan as part of a paternity action, they hit things they cannot resolve.  So one of them files a motion and asks for a judge to make an interim ruling on something.  It is also the place to come and ask the judge to enforce orders that the other parent is not following.

If you have ever had a friend who got divorced with children, you know that it is something a parent can talk about for hours on end, days on end.  Often, the person listening is a real lifeline for the complaining parent.  Just to be able to name and delve into the injustice of how unfair or unreasonable the other parent is being can be such a relief.  It is nice to talk to another grownup, and it helps to avoid saying negative things or venting in front of the children.  I am not suggesting that venting is a long-term solution, simply that we usually have as long as we need to get our story out, and we get some relief from that.

In court, we also ask for relief, but within such narrow parameters, that many parents leave the hearing raging or crying, or both.  I think very few parents come in truly fathoming how little time they will be allotted, and how very narrow the focus must be.  A motion is filed and served with 14 days notice.  The response is due 4 days prior to the hearing, and a reply is allowed 2 days prior.  Everything is in writing, and nothing late will be admitted or even read by the judge.  Then you come in for oral argument in open court.

Oral argument is five minutes for each side.  Five minutes.  You cannot bring up anything new or different than what is in your paperwork.  You cannot submit any more proof, or add anything.  You are supposed to simply make what amounts to your closing argument, based upon the evidence you submitted:  Check stubs, declarations, school records, doctor’s notes.  Something you may have complained to your friends about for seventeen hours, you now have five minutes to try and resolve before a judge in open court, with dozens of equally anxious people listening and watching and waiting for their own turn.

One parent was representing himself on this day and trying so hard to explain exactly what he wanted and why.  Not everyone is used to speaking in public or planning out an organized speech.  Few people even understand what it means to argue upon the evidence versus offering new evidence.  Standing scared and humiliated in front of a judge about that most intimate of relationships, our own family, and testifying about how two adults who swore to love each other cannot agree to something like a school vacation is not the best of circumstances.  This man tried so hard but the judge had to keep interrupting him and redirecting him until he was finally tongue-tied.

She leaned over from the bench and looked him in the eye.

“Sir, you brought a motion based on your life.  Based on what you lived through.  I understand that.  But I have to rule based on the law.”

I did a series of hearings in a row and they have now blended together in my mind.  Was he the one trying to get the passport from his ex so he could take a planned trip internationally?  Or was he wanting to be able to attend his child’s soccer games?  Did he want to force his mate to sell the family home or at least refinance so he didn’t owe the mortgage?  Or did he want to choose the child’s counselor?  Maybe he just wanted to have dinner with the child once during the school week.

The paperwork for temporary parenting plans is well-organized and detailed, but most people just have a lawyer check off the boxes, or fill them out randomly themselves.  Who gets midwinter break?  Who gets which holiday?  Does the vacation schedule stay the same as the school schedule?   Who gets to make decisions regarding medical care, education and religion?  Who cares, when your whole life just fell apart?  How can you even begin to fathom whether you want the children for the 4th of July or their birthday?  Odd years, or even, or every?  There are pages and pages of boxes and boxes, and you just want the whole thing to go away.

So you randomly check the box that says neither parent shall take the child out of state, and then you get offered a business trip to Italy where you can take your children with you at no cost, and oops.  You ex says you have not been cooperative, so there will not be any agreement about modifying the temporary orders.  And you have to decide whether to forego the wonderful trip opportunity, or go back to court, and argue your five minutes.

And you don’t really understand the law.  You don’t know whether the judge is even allowed to modify a temporary parenting plan, or whether you have to wait for trial.  You don’t know if the timing of when you found out about the trip matters, or if your ex can give you permission to modify the order, and whether it needs to be in writing.  You don’t know what argument would make a difference, and you don’t have time to make it anyway.  And you don’t know the law.  You just know what you are living through, and it feels like hell.

When you were little, your parents would likely sit down after dinner and make plans for a vacation.  There was never a question about who had your passport.  The organized parent always knew where it was.  There was no question about which parent took you to soccer practice, or what doctor you went to.  Somebody decided all of it and it was never an issue.  And even when your parents fought about something, it got resolved without a judge.   They were able to argue with each other based on their life, based on what they had lived through, and no one told them they only had five minutes.  Somehow, for many families, it just all worked out.

I understand that many families have abuse.  There are toxic relationships.  There are issues of addiction, power differentials, entitlement and control.  There are families and children that need the protection of the courts.  But for many families where the situation does not rise to that level, the court process essentially pathologizes what was a fairly healthy relationship, and adds an incredible strain upon what was already fighting for survival.  I am not talking about the failed marriage, or even the natural end to a successful marriage, but the ongoing co-parenting relationship.

Children do not attend the family law motions calendar.  One parent is at one podium, and the other parent is at the other podium.  One is respondent and one is petitioner.  Some have lawyers and some are pro se, speaking on their own behalf as best they can.  The two parents are side by side, and there is a space between them.  As I view it, that space holds their child, whose arms are outstretched, as the child is pulled in two directions.  And as each parent presents their case, I see that invisible child getting pulled by each hand in a tug of war that threatens to tear that child apart.

I have compassion for the parents, and respect and understanding for the judges.  But my heart goes out to the child who is placed in that perilous widening space between the two parents during the court proceedings.  Most of all, I fervently wish that there were an easy way to keep that child whole, and happy, throughout the parenting plan process.  Because outside of abusive families, I would venture to guess that very few children give a rat’s ass about where they are on any given Tuesday evening, as much as they simply want their parents to get along well enough to keep them feeling safe, and listened to, wherever they are.  Not unreasonable requests.

 

FOR THE SAKE OF THE CHILDREN

Another one of my Dad’s old jokes.  A divorce lawyer has an appointment in her office with a certain Magda and Henrik.  They want her to file the paperwork for an agreed divorce.  A routine matter for her, but imagine her surprise when the clients are absolutely ancient.  Magda’s hands tremble as she pushes Henrik’s wheelchair in the door and makes her way to a chair.   She is breathing heavily and pulls out her asthma inhaler and takes a few puffs.  It takes her quite a while to dig the papers out of her capacious bag and put them in front of the lawyer.

“I have a few questions first, whenever you are ready.  If you don’t mind my asking, how old are you two?”

Henrik replies in a quavering voice.  “I am 101 and my old Magda here is 98.  We married awful young and realized it was a mistake early on but -”

Magda catches her breath and interrupts. “Yes, we’ve been married for 78 years now.  I was just turning 20 and Henrik was a ripe old 23 when we met and we married too quickly.  We weren’t a good match, is all.  So we want out.”

The lawyer is puzzled.  “But why now?  Why now after all these years?”

“Well, we didn’t want to hurt the children.  So we waited until they were dead.”

Plenty of couples stay together for the children.  It is a certain kind of stability to have a family home.  What a blessing for children to never have to choose or be ordered to live with one parent, or to visit the other on a set schedule.  To never have to live out of suitcases and be shunted between changing households.  And psychologically, at any age, to have parents as a self-contained unit that can take care of itself. Above all, to never deal with parents dating.  Yuk!  I always found it a comfort to talk about “my folks” rather than “my Mom, and my Dad” as separate units.  I am glad I never saw my parents with anybody else.  I would have hated that.

Unless there is outright abuse, it seems better to just stick it out for the sake of the children.  But for how long?  How much unhappiness, how much loneliness, how much suffering and pain, should a parent take “for the team?”  How much putting off of one’s individual hopes, dreams, and goals?  How much subsuming of one’s self to support a marital unit that may be no more than a castle built on the sand?  That is too large a question to answer at one sitting.  There are endless sets of facts leading to endless reasoning pointing either to stay or to go.  The shortest version may be that any two people in a relationship are going to have moments of anger, disappointment, even betrayal, and stay friends.  But staying friends does not mean you have to live together.

I was talking some years back to a psychologist friend, and saying I would hate to put so much heart, so much effort and strain, so much work, really, into a long-term relationship only to have it fail.  Her response was a good one, and I find it a comfort to keep in mind as I work through the end of so many relationships in and out of court:    A relationship is not a failure simply because it ends.  You can have a successful relationship that reaches a natural expiration date.  Not all relationships will last in their current state until the day you die.  Many people come in and out of your life and many friendships and even family relationships change character over time.

It took me a long while to accept this, because to me, marriage is a life-long commitment not just to remain friends, but to stay together and live together.  I understand that in the US around half of couples disagree with me.  They do not want to live in what to them is an unfair and unhappy relationship.  I sympathize with them.  I would love a world in which things were more fair and even, more predictable – a world in which we could know that we are going to get what we give.  Then we could all invest as much as we want and be rewarded accordingly.  Giving fidelity means we will not be betrayed.  Telling the truth means we will not be lied to.  Staying sober means we will not have to deal with addictions.  Working hard in the house and yard and to rear the children would be matched effort for effort.  Everything would add up to absolute fairness and equity.  Yay!

There is no such rule.  No such law.  There never could be, no matter how much we yearn for it.  Because in the end, the effort that any individual puts into a relationship is not really quantifiable.  We can never know the internal struggles that another person has suffered through in order to do something we find simple, easy, and the only right thing to do.  One person might be deeply gratified by staying faithful as a point of honor, where for the other person it is a daily struggle and not even a highly held value.  One person may love the daily routines with small children, where the other might find it a grinding nuisance.  One person might find it easy to overcome the emotions of the moment, and see beyond, where the other might the victim of horrible and dark feelings that he will do anything to avoid, including acting out in ways that will cost him the things he says he loves.

We cannot see into the human heart and know how easy or hard anything is, or what struggles any individual undergoes.  Two people doing the exact same thing does not mean equal effort.  And even on the surface, in most couples, the two people are not doing the same thing.  One earns more money and works more hours.  The other may quit school or a good career path in order to set up the family nest and rear the young.  One may be a calm and peaceful presence, while the other is a dynamo of activity and planning.  One might just sleep on the couch while the other does most of the work, but who is to say with absolute certainty who has the better deal, who has more joy and satisfaction, who is the “winner” and the lucky one?  We cannot know.  So how could a divorce judge possibly know?

In our no-fault state, the end of such a relationship does not include talking about who failed in the marriage.  Who really raised the children, or whether a certain someone left dirty underwear on the bathroom floor, let alone more painful matters.  Because the final orders are going to do two things alone.  One, separate your finances in specific dollar amounts.  Two, create a parenting plan indicating where your minor children will be at any given moment.

There isn’t much more to it, except the nuclear fallout of your feelings.  Your guilt for making your children suffer and for being a horrible person whose word of honor turned out to be a nasty lie.  Who has abandoned your post and is a traitor to everything you once swore to uphold, and all for selfish reasons of seeking your own happiness!  Horrible, terrible you!  And horrible, terrible spouse who drove you to it!  And there is nowhere to vent those feelings, or get final, formal judgment assigning fault, in court.

Neither parent will be judged on their marital performance and no one gets to have a court order saying, “Yes, Mrs. Snivvers, you were the centerpoint of your family and your husband was an absolute louse.  That is why we are sending him to a retraining camp where he will be forced to play the role of a housewife for six months, under direct supervision, with child actors and a bitter and morose, ungrateful husband with dubious hygiene and poor table manners.  Once released, you can look him over and decide whether you want him back.  Up to you, Mrs. Snivvers.  Because you win.  You have prevailed in this court case.”  No, it never happens the way we wish.

In the thousands of cases I have interpreted for, while a few parents feel the natural relief of ending a painful situation, both parents very naturally also feel they have lost.  Because they have.  They always do.  When two loving people share a wonderful home, they each feel that the home is all theirs.  There is no sense they have half a home, or half a family.  They each have a whole home, and a whole family, and a shared indivisible set of whatever they own.  They don’t think of time with their children as something they have to fight for or earn or get a judge to allow them.  They can both see the kids any time.  They can both see the kids all the time.  They can do everything together, whenever they wish to.  They have everything.  They don’t think about it.

One stay-at-home mother who had reluctantly agreed to shared custody to avoid going to trial came to see a family law facilitator about a month after the settlement.  “I didn’t realize what I was signing.  I didn’t understand!  I just now realized that I have agreed on paper to miss half of my children’s upbringing.  I am only going to see them for five of the next ten years.  I will miss the other half, and not be there to help them or guide them.  How can we possibly stay close when I am missing half their childhood?  No!”

Tears started to roll down her face.  “It’s like I’ve given them away, like a half-time adoption.  He never took care of them alone, and he doesn’t even know how to.  They need their mother!  And I don’t want to miss them growing up.  God, what have I done?”

She had done what half the US population who marries does – she had taken something that is more than the sum of its parts, a unit in which each parent has a full and unencumbered right to all the time they want with the children, and each parent owns the whole house and everything else.  Even the friends of the couple are shared.  Even the two families of origin are blended and shared.  She had taken that beautiful whole unit, that shared, organic, living thing that nobody ever dissected. And then along with her husband, she killed it and cut it into pieces.  And the pieces do not easily add up to a whole intact family.  Because Aristotle’s mysterious mathematical equation  holds true here: the whole is more than the sum of its parts.

Who can blame Henrik and Magda for waiting so long, and who would blame them if they choose to just struggle along until death do they part, as the wedding vows have it?  I would not.  Nor do I judge them for wanting to get a glimpse of what might come into the space between them, once they are free of a relationship whose expiration date has long passed.

 

 

 

 

WE HAVE TO TALK!

In my state, when a couple is getting divorced, they must attend mediation before they can take their case to trial.  One view claims that this is an inexpensive way to resolve disputes rather than clogging up the courts with what should be a private matter between two contracting parties.  The only exception to this are cases of domestic violence and abuse of children, where there is such a power differential and so much pain that there is simply no fair way to mediate.

For the rest of us. as much as we would like to have the judge in the sky who can make things fair and right, and give us back a shred of our lost dignity, if not our wholeness, we must first go through the painful process of “giving in” on all sorts of items where we really long to be right and vindicated.  My experience with divorcing couples who have stopped talking is that each one weaves a web of reasons why they should get what they want out of the divorce.  Because the other person has ruined their life in some way.  Each has lost things that they cannot get back and they do not want to lose one more thing in the divorce.

Years ago, mediation would take place in a single room, and it was almost impossible to come to any resolution, because the very sight of each other was a trigger for a flood of painful emotions, fear, rage, indignation, and a great desire to remind the other party of how they had failed.  You are the one who… (fill in the blank based on what you have been telling yourself since the separation).  I sympathize, because we all have the stories we live, the stories we create in which we are the heroines and victims of our own lives.  We can all see the painful places where our partners let us down, betrayed us, and even ruined our lives, if it comes to that.  And it is much easier to see how others should change or give in.

Some years back now, a wise decision was made that seems to have vastly improved the chances of reaching resolution via mediation.  Separate rooms.  The parties come to the court at the same time.  They are sent to different rooms.  There is one mediator who is highly trained, and very calm.  She is an absolute expert on keeping parties on track. And a master negotiator. And best of all, neither of the parties are mad at her or disappointed in her.  She is absolutely neutral.

As interpreter, I have watched her in action.  Parties come in laden with the pain of their shattered lives, their instability, their grief and loss, their fear for an uncertain future.  They often see the divorce at that moment as their lifeboat – their last chance to grab onto something, anything, from the wreckage, and survive the disaster that their family life has become.  Fighting is the only way they can envision to get the money, the property, the time with the kids, the court protection, so they can still be okay after their lives fell apart.

Each party must come in with their proposed orders for the mediation effort, so every aspect of the parenting plan and other documents has already been considered and thought out ahead of time.  The mediator has taken the time to review it all and mark the places where there are differences.  Then she starts her long journey from room to room gently nudging the parties out of their respective positions for the good of all.

I remember sitting with a very sweet very hurt woman who just said no, I want everything exactly as I have it on the papers.  I will not give in on anything!  She then launched into a historical view of her husband’s wrongness, his cruelty, his selfishness and the pain he has caused – he doesn’t deserve anything!  And that may be perfectly true.  But as the mediator pointed out, this is a no-fault state, and that means the judge is not going to grant property based on who was bad or good as a spouse.

It is a community property state, and that means that no matter who earned money and who took care of the kids and who mowed the lawn and who screwed the neighbor, you are likely to split the property and money fairly close down the middle.  Exceptions are not based on bad behavior, but historical earning potential, education, the best interest of the children, health, and such factors.  The concept is that when two people are married, they are working together toward common goals.  Saving for a house, helping each other through school, and sharing everything.  Right up until it falls apart.  And then the law still views it as from date of marriage to date of final separation, the fruits of the marriage are a shared harvest.

Back to the mediation.  The woman I was with on this occasion finally and somewhat resentfully agreed that hubbie could have one more overnight a week and write the child off on his taxes as a dependent, and the mediator was able to use those two slight movements to start rolling the boulder away from the mouth of the cave of their marriage.  She went to the husband’s room and was gone for nearly an hour, after only fifteen minutes with us, so he may have been more of a hard sell.  But when she came back, she came in stating she had good news.  He was grateful for her offers, and he had now agreed to something she really wanted –  that she could make decisions related to education, health care and religion, instead of them as a couple having to come to consensus on these matters every time.  He would like to be consulted, but she would have the ultimate word.

Her face lit up at this.  It was her child, and she was not the one who had betrayed the family unit!  This give-in allowing her to be the formal on-paper “custodial parent” was a vindication.  She had more residential time and and now she had the decision-making.  She had regained her family of two (out of three original members).  She was the new head of household!  She sighed with relief several times.  She felt empowered, and was able in turn to be generous.  It helped that she didn’t hear all the crap he had likely said over the last hour, or the look she would have wanted to wipe off his face with her fist.  She just saw the calm, kind, neutral face of the mediator.  So the wife ended up giving in on several matters of importance to the husband that were worth a lot of money, including signing off on a home he had owned before and during the marriage.

He in turn was happy to keep his house and not have to sell it.  He had bought it as a young bachelor and struggled to keep it during periods of unemployment, and he had hated the idea of having to sell it and start over.  It made him feel safer and more settled to keep this house.  He came around about the higher child support figure and let it be set to include his overtime based on a yearly average.  In the beginning, he had been adamant that he did not have to work over 40 hours a week, but now that he wouldn’t have to come up with a chunk of money to pay her, and he had the freedom to sell his home if he ended up getting into trouble later, he also felt safer in agreeing to pay more child support.

After five or six more trips, the mediator started coming back with kind greetings from the other party.  “Your husband says he is happy to pay full support.  He still plans on helping out more than that, buying clothes and sports equipment and such, whenever he can.  He would like you to exchange tax returns every year so you can see if there is a big change, because he isn’t guaranteed the overtime.  But for now, he agrees to just take his annual income for last year and divide it by twelve for current child support.  He is really grateful for your cooperation.  You are going to get through this!”

Presumably she was also going to the other room with encouraging talk and acknowledgement of generosity and willingness to cooperate.  She is expert at reframing the issues so that the parties can come to resolution.  I actually heard her tell one very upset party at another mediation a fairly good argument for why she was not going to listen to anything about the failed marriage.

“Your marriage is over.  That is why you are getting divorced.  So nothing that happened in it is part of this process.  The marriage and all its problems are behind you now.  You are moving into a new status as co-parents.  Think of yourselves as partners in a new business.  The business is to raise your child successfully.  The more you can let go of the past, the happier your child will be. Let’s focus on the future for your children’s sake”.

In cases where there is too much resentment and entrenched anger, she also reminds the parties of a very true fact.  The judge does not know you – the judge does not know your children.  The judge has no way to know who contributed more to the marriage, and who deserves what.  That is not even relevant in the law.  So if you two cannot decide which days your child will be where, and who is going to spend a holiday or have a vacation, or how to distribute your property, the judge will have to make a fairly random decision based on very limited information, and you will both have to live with that for years to come.  It is up to you.

If you are more interested in stopping your partner from getting what she wants than in getting more of what you want, then go to trial. Otherwise, give until it hurts and you can begin to heal.  And the thousands of dollars you each save on lawyers will remain in the two households that your children now call home.  Your children will see that you care enough about them to get along with their other parent.  And that is a treasure worth talking about.  Good luck.