Why get divorced?

Very interesting article in the New York Times explores when being separated suits everyone's purposes, and, when it just doesn't work:

But long-term separation can create big problems. If a couple isn’t divorced, their lives are still legally and financially intertwined. If your estranged husband goes on a spending spree, you’re responsible for the ensuing credit card debt. If you win the lottery, that’s community property. Finances can swing wildly, creating an alimony boon or a bombshell should one partner eventually want a divorce.

“I just had a situation where after 15 years of separation, the wife wanted to remarry,” said Elizabeth Lindsey, an Atlanta divorce lawyer. “But over the years, his assets had completely dissipated.” The wife would have profited from divorcing earlier.

A separation can also go on longer than anyone anticipated, even until death, leaving a mess for survivors. In New York State, for example, a spouse, even if separated, is entitled to a third of the partner’s estate.

There’s also the risk that you could lose track of your erstwhile partner altogether. “We see cases, usually with foreign nationals, where the husband goes back to the Philippines, and the wife wants to marry James but she’s still married to Ted,” said Steve Mindel, a managing partner at the Los Angeles law firm Feinberg Mindel Brandt & Klein. Judges now often require that a professional be hired to locate the spouse, to facilitate the divorce.


http://www.nytimes.com/2010/08/01/fashion/01Undivorced.html?pagewanted=1&ref=style:

Out-Maneuvering the Manipulative Party

I've discussed this briefly before, but power struggles are one of the most interesting and challenging aspects of mediation for a mediator, and especially this one.

When one party is more knowledgeable of the law or the process at hand, they may turn often to the mediator for reinforcement that they are "correct." Over time, this can result in the other, less well-informed party feeling trampled, or often defeated. How to navigate this scenario with care? Even if the knowledgeable party is technically correct, I try to remind both parties that one of the reasons they are in mediation is that the alternative dispute resolution process allows for a more creative (although always legal) solution.

This maneuver usually helps me to sidestep declaring them correct, and reminds them that their interests will be far better served if they engage with the other party, rather than seek to display the twenty minutes of Internet research they have may have done in preparation for the meeting. A gold star from the mediator doesn't go very far when the parties can't have a meaningful exchange between themselves. Alienating the other party is not prudent, and yet this is exactly where this path will lead. Most parties in mediation are there to work with the person on the other side of the table - when the conversation turns to "right" and "wrong," things are almost certainly going downhill. I prefer to couch issues in terms of "fairness" and moving forward towards an equitable resolution together.

The law absolutely has a place in mediation; a sense of the law is vital to enable the mediator to provide context for any agreement that may emerge from the process, as well as to ensure that the parties are fully informed of their rights. In my experience, this legal background is perhaps best received when it comes from the mediator, and preferably is requested jointly by the parties.

Navigating Difficult Conversations: Divorce Mediations

While many mediations are emotionally charged, divorce mediations are perhaps the most contentious. Not only is a partnership being dismantled, but the parties are often distraught, emotionally bruised, and perhaps angry. In such a mediation, it is essential to navigate with care, lest one party feel slighted or ignored. I find it challenging to honor how one party is feeling without over-validating them, and thus risking the alienation of the other party. It's a tough balancing act, indeed.

When it comes to controversial issues like spousal support, I find it's often constructive to give the parties a reality check - I insist that they consult with independent counsel to understand that the agreement we are crafting is indeed fair. Once they realize that they're neither being cheated nor ignored, and are often getting a better deal than they would in Court, a once-dissatisfied party will often become much more amenable to the process, and begin to collaborate with their ex-spouse and the mediator to build a workable agreement.