Articles Posted in Conflict Resolution

As a divorce lawyer and mediator, I often encounter people struggling with the decision of whether or not to divorce. Since I have no idea what is the right decision for anyone else, I often say that a decision to divorce will be made when the pain of staying is greater than the fear of leaving. That’s how it was for me anyway. It is always a good idea to keep working on a marriage if both are committed and invested and hopefully the effort will lead to a more joyful union. But sometimes it does not and divorce is the right choice. And the pain of leaving will pass. The pain of staying will not.

Here are a few reasons why, in some cases, divorce might be the right choice:

  1. Staying married is usually not better for the kids.

It just adds to the pain of those in an unhappy marriage to feel that divorce will harm the children. It is important to consider the children’s feelings, and to protect them from the harm of a high conflict divorce, and ensure that their relationships with both parents are nurtured and maintained. However, the idea that staying in a bad marriage is somehow better for kids is dubious. What is more harmful and even traumatizing is living in a home filled with negative emotion, tension, and conflict. If the marriage is unhappy and a thoughtful decision to end it is made, you are modeling for your children that they do not have to be passive participants in their own unhappiness. However, it is essential that the divorce not be a high conflict one since studies show that kids of high conflict divorce more likely to experience delinquent behavior, a reduction in ability to maintain supportive friendships and dating relationships and less trust in future spouse. A divorce process such as Collaborative or mediation can help couples resolve the issues in a positive, respectful and mutual way and protect the children from the conflict.

  1. Improved wellbeing.

Chronic marital distress, unhappiness and conflict can create a fight-or-flight state, where one may feel they are “walking on eggshells,’ fearful of saying anything for fear of adverse reactions. This can result in sleeping problems, unhealthy eating habits, abuse of anti-depressants, or other forms of self-medication. The toll that negative relationships can take on physical health should not be underestimated. Some research suggests that chronically negative or abusive relationships can shorten one’s lifespan. So, ending a toxic relationship may be the first step to improved physical, mental and emotional well-being.

  1. You may create the opportunity for more satisfying relationships in the future.

Sometimes working through a difficult marriage and developing greater self-awareness around what your role may have been can lead to a happier relationship in the future. If after thoughtful work on yourself and your own weaknesses, there is no progress in your marriage, then the longer you stay, the longer you deny yourself the possibility of romantic happiness. Instead of fearing facing the world alone, fear spending a lifetime in an unhappy relationship. Fear of being alone is not an adequate reason to stay in a marriage and actually increases the misery, as one feels trapped and powerless.

  1. The grief will pass.

For some who know they need and want a divorce, the fear of unbearable pain and loneliness keeps them stuck. As difficult as ending a relationship can be, however, many find that they learn something from the pain and find some personal growth in the process. For example, they become more connected with family and friends, or find more meaning from other relationships. And it is helpful to take time to grieve, to give yourself time to experience the loss and process the feelings around ending a significant relationship.

  1. Giving up the fantasy that things will improve can be liberating.

Many live for years with a hope that the relationship will improve. And hope is important, but without meaningful action, it is misguided. Although the hope for improvement can sometimes provide relief, in the long run it can lead to defeat and disappointment when things don’t improve. If you and your partner are not actively working to improve the marriage and there is no real improvement, and both are not equally committed to the work, then hoping for improvement may just leave you stuck in a very unhappy situation.

 

So, once that decision has been made the next decision is how to proceed. There are many decisions to make in a divorce – how to divide the marital assets and debts, how to co-parent the children, how to address issues of child and spousal support.

These are all important, but the most important decision, is what kind of process will be used to make these decisions. There are several ways to divorce – from the kitchen table, do it yourself variety, to mediation, Collaborative and litigated. A contentious, litigated divorce is nearly always financially and emotionally toxic for all concerned. It is infinitely harder on the children that a respectful and thoughtful process, such as mediation or Collaborative divorce. Mediation and Collaborative divorces, on the other hand, allow couples to create an optimum outcome for the whole family and create a positive and respectful co-parenting agreement.

With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes approaches divorce cases as a problem to be solved, not a battle to be won. She handles each case personally, taking the time to understand each individual client’s needs and interests and explaining the various options for resolving these matters. Call us at (510) 795-6304 or contact us online to set up an appointment.

 

Anyone who has been through a divorce probably already knows that it can be a stressful, complicated, and emotionally and financially draining experience. The legal issues involved may be even more complex in situations where the couple work together running a business. In In re Marriage of Greaux and Mermin, California’s First District Court of Appeals explains that the spouse who is ultimately awarded the business has the right to protect it from being devalued by the other spouse. In some cases, that may include seeking a court order to stop the spouse from starting a competing business.

stapling-machine-1440644-m.jpgIn this case Wife filed for divorce in 2009. During the six-day trial that occurred two years later, one of the few remaining disputed and unresolved issues was what to do with the beverage company they owned and jointly operated during the marriage. The company distributed and sold a type of rum.

The business was community property and the judge determined that both spouses brought “unique talents to it.” Husband had little education, training, or experience running a business, but the judge said his considerable effort and determination were “crucial” to the business’ success. Husband also developed relationships with others in the industry whose experience and personal relationships were very helpful to the business. Wife, on the other hand, had marketing and sales skills also crucial to the business, and her family history in the Caribbean served as the “brand story.” The trial judge also noted that Wife had a deep understanding of the rum, its ingredients, and the process for making it, and had qualified as an official industry “taster.” She was designated in company investment materials as the “face of the brand.”

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My practice has been limited primarily to Collaborative Practice and Mediation for many years, since I learned long ago that divorce is a problem to be solved not a battle to be won, and the court system only exacerbates the problem and most often leaves couples worse off, financially and emotionally. Collaborative Practice and Mediation allow a couple to divorce in a structured and facilitated process that enables them to stay out of court, gather and review all of their financial information together, brainstorm options for property division, co-parenting and support, and craft an agreement that works for all. This process reduces the fear and anxiety because every step in the process is taken together and both understand that nothing will happen and no agreements will be signed or filed until both agree.

These processes are not without difficulty and conflict. The couples are divorcing after all so there is most always conflict. But unlike the court system with uncaring judges and litigious attorneys, Collaborative Divorce and mediation endeavor to help parties communicate more effectively, understand each other’s needs and interests, and help them find common ground and shared goals. This most always leads to agreement.

Another reason I value out of court processes is that I believe in personal empowerment and the right and ability of most everyone to make their own decisions in such matters. With very rare exceptions, I can’t think of any good reasons divorcing spouses would want a judge (ie government official) to make decisions about how they divide marital property or co-parent and support their children and each other. In most all cases, the best people to make these important and personal decisions, are the parties themselves.

Once a couple agrees on the terms of their settlement agreement, the agreement and judgment forms are submitted to the court for processing. Sadly, the court processing can be unduly lengthy, often as long as three or four months, but until recently, most judges would approve judgments provided the parties completed the requisite paperwork and filed documents signed under penalty of perjury stating that they had each completed and exchanged the requisite financial disclosures. Parties working together can make any agreements they want, but the agreements must be based on full knowledge and understanding of all separate and community income, assets and debts.

Recently, however, many judges have begun asking mediating or Collaborative parties who have submitted their judgments to court for processing to attend uncontested hearings to explain and justify the terms of their agreement to the judge. These are folks who have chosen mediation or Collaborative divorce precisely because they wish to stay out of court. Often the first question people will ask is , “We won’t have to go to court, will we?” I used to be able to answer no to this question, but no longer. This unwarranted interference by the courts is, in my opinion, intrusive and overbearing and deprives the couples of their autonomy, dignity and right to make their own decisions.

So, for those who really wish to stay out of court, it appears that a good option is to stipulate to a private judge, which usually costs around $500 – $550. An extra fee, but well worth it for many. The other benefit of a private judge is that they are much faster than the courts – a private judge will review and sign off on a judgment in probably two to three weeks, rather than the three to four months taken by the court coupled with their burdensome requests to come to court to justify decisions and agreements. Plus there is the added psychological benefit that the entire divorce, not just the process of reaching an agreement, is outside of the dreaded court system.

With more than 13 years of experience working with clients in divorce and other family law matters, attorney and mediator Lorna Jaynes utilizes innovative legal tools to resolve these and other family law disputes for clients in the San Francisco Bay Area.

A segment of This American Life with Ira Glass on NPR, entitled Breakup, addresses divorce from several different perspectives and is well worth a listen.

In Act Two, an eight-year-old girl embarks on a campaign to understand her parents’ divorce, a campaign that takes her to school guidance counselors, children’s book authors, and the mayor of New York City. The segment re-plays her 1986 interview on All Things Considered as a young child and how she struggled to understand why the divorce happened. In this interview 20 years later, she praises her mother for putting her daughter’s interest first by encouraging and supporting her relationship with her father, never blaming her father, and never saying anything about her father’s affair.

In Act Three, Ira speaks with a Collaborative Divorce attorney and Mediator about why it is so bad when the justice system gets involved in a divorce and the many benefits for families who can resolve the issues outside of court. The attorney speaks to the value of a process that focuses on listening to the other and seeking to understand.

Act Four looks at divorce from the dog’s point of view.

All acts highlight the value to everyone involved of a divorce grounded in respect, compassion and love. And these are the values that ground and sustain Collaborative and mediated divorces. With either mediation or the Collaborative process you have control over the decisions that are made and will be firmly supported, legally and emotionally, in achieving a successful dissolution of your relationship. This not only allows, but also encourages you and your partner to create, or leave open, lines of communication that are of enormous benefit to the whole family.

Working as a team we can achieve a successful resolution of the issues in dispute without the bitterness and acrimony engendered by the adversarial process. The Law & Mediation Office of Lorna Jaynes is based in Alameda county and serves Alameda, Santa Clara and San Mateo counties.

Even for happily married and intact families, the holidays can be fraught with conflict and compromise. But for divorced or separated parents and for blended families – the potential for conflict is significantly higher. Negotiating co-parenting agreements and sharing time with kids is rarely easy, but this is a time of year when it can be most difficult to let go because of the tradition and ritual around how the holidays are managed.

But for the sake of the kids you have to share it. And here are tips to
help your holiday season be filled with merriment – not resentment.

Make a plan





If you don’t already have a holiday schedule, do it now. You don’t want to create anxiety for the kids about what they’re going to be doing at Christmas. Sit down with your ex and a calendar to determine how you’re going to share time during the holiday break. The plan can be fluid and can change, but a basic structure reduces mis-communication and sets expectations. Ideally, a vacation and holiday schedule will be part of a marital settlement agreement in a divorce. Think about the even year – odd year compromise. One parent gets first choice in even years and the other in odd years or simply switch the holiday time on an alternating year basis. For example, in even years one parent may have the children for Christmas Eve and morning, then take them to the other parent at noon. In odd years, the schedule would be reversed. Often it is worthwhile to go over the kids Christmas presents together to avoid duplicate gifts and to ensure that similar amounts will be spent. For co-parents who live far away from each other it’s not so easy. If you have to be without your kids for the entire holiday make sure you can call and talk to them.

Focus on the kids



As a mediator who helps couples resolve parenting and custody issues, I sometimes have a photo of the kids on the table during a session and ask: “What do you think they would really enjoy? What would work for them?”

That can be as simple as letting the kids call mom on Christmas Eve or attend a special holiday event with Dad. For mom Maureen Palmer, the answer was more extreme. When she and her husband split up, their daughters, then aged 15 and 10, stayed behind in Edmonton with their dad while palmer took a job as a TV producer in Vancouver. She’d do homework with them every night over the phone and fly back to Alberta for four or five days twice a month (a schedule she kept up for a decade).

”Christmas was very, very big in our family,” she says, and her girls weren’t ready to let that go. So for two weeks every Christmas, she would camp out in her ex-husband’s basement – once with her boyfriend in tow. “I sort of took over and did Christmas the same way we did when we were married,” said Palmer, who went on to make the documentary How to Divorce and Not Wreck the Kids. It wasn’t easy being a guest in her former home, and her need to impose her version of “order” on her ex’s household created tension. “But Christmas morning was child-centered, and we both enjoyed their joy so much, that how we felt about each other barely registered,” says Palmer. “We didn’t want them to feel any of the tension kids who are pulled between two households feel.”



As for me, well I am having my partner’s ex-wife and husband over for Christmas so that their kids get to be with both of their parents.

And although children’s preferences should always be a priority, it is also important not to them too much input into how they spend the holidays. The burden of choice is problematic for kids “because they know it’s going to make one of the parents really unhappy. Kids will often tell each parent whatever they believe he or she wants to hear. And for most children, that is a terrible place to be. Kids need a predictable schedule that both parents seem happy with, even if that means putting on a brave face. Practice emotional restraint, maturity and leadership. The most important thing is to continue to be loving parents, and to keep the conflict away from the kids.



Create new traditions





Your holiday celebrations may have changed after the divorce, but they can still be wonderful. Think together with your kids about how you want to celebrate the holidays. And though it will be painful, be prepared to let go of some of the activities you used to do. Don’t make the kids feel bad that they missed out on something when they come home.

And no matter how sad or angry you are, never badmouth your ex in front of the kids. Save that for a good friend, therapist or support group. 



Stay busy





If you’re going to be on your own for the holidays, be prepared and plan for it. Maybe it would help to celebrate with other family and friends, or perhaps a quiet evening at home with a special meal. Or venture out and volunteer to help others, go on a trip or do something else special for yourself.

Stay hopeful





It is the best gift you can give yourself and your loved ones. Make the commitment to take the time that’s needed to heal and remember that healing is a process, so give yourself the time and space to find hope and healing.

And if you cannot agree, consider a mediator. A mediator is like a referee or better yet, your first grade teacher: Someone who will help you play nicely in the sandbox, or in this case the mediator’s office, and hopefully just long enough to make a deal.

For more information, visit us at www.lornajaynes.com

Conflict in the context of divorce can be emotionally and financially debilitating. Family court judges commonly make decisions and orders based on how the law applies to what has already transpired between the parties, to the past. And this approach keeps the spouses in a conflict trap where they are focused on the past and the grievances, hurts and betrayals; rather than on the future, and how they can best solve the problems in order to move forward.

Collaborative Divorce and Mediation on the other hand, enable the parties to focus on what is important for them now and in the future. By focusing on problem solving and real listening, there tends to unfold an understanding that can help couples let go of the conflict and the past and move forward in a productive way, solve the problems and help heal the pain, grief, and anger.

A forward looking focus, however, doesn’t preclude talking about the past because sometimes it is important, essential even, for spouses to be able to express and have heard by the other, their understandings of what went wrong with the relationship. This mutual expression of the hurt and anger, if entered into with an open heart and deep listening can be profoundly instructive and helpful to the process. This is especially important if there will be a continuing relationship, for example, co-parents.

Usually, perception of the conflict radically changes when one’s feelings, experience, and understanding are recognized by the other as completely valid, even if not agreed with. A goal of the understanding approach is to find connections between those in dispute. While understanding does not in and of itself resolve the dispute, it provides a foundation for productive problem solving. And when people can start to see the humanity in each

other, solutions tend to arise naturally.

Ultimately, this ‘understanding’ approach offers a way to achieve positive and respectful post-divorce relationships and enduring and mutually beneficial solutions. Not to mention the benefit of avoiding the financial and emotional pain of litigation.

For more information, visit us at www.lornajaynes.com

Sometimes, quite often in fact, the flames of conflict in divorce cases are fanned by attorneys who have more to gain from conflict than from resolution. Against my better judgment, I recently accepted a litigation case with the hope that perhaps I could help facilitate a negotiated settlement. It appeared to be a matter that could be settled with relative ease. During the negotiation process between the attorneys, the clients had a long talk, longer than they had had in years from what I was told, and agreed to put the matter on hold for some time to see if they might reconcile and resolve some of the disputed issues between them.

Upon hearing this, I was tentatively hopeful for both and provided my client with resources he might consider to help improve their communication and relationship and suggested that marital counseling may also be very helpful. And of course, a flower or two wouldn’t hurt.

When my client’s spouse told her attorney of their plans, her attorney responded with the statement, “Oh, so he wins,” and grudgingly prepared a stipulation to continue the scheduled hearing out for a mere three months. I was horrified but not really surprised.

This is a marriage of nearly 40 years, a couple of retirement age with adult children and grandchildren and very moderate assets. Divorce in a situation like this should be a last resort only after some attempt at counseling as it is certain to result in considerable hardship for both. And after nearly 40 years, there is so much to savor and cherish if reconciliation succeeds.

I sent an inspirational photo and waited, hoping that the gods and goddesses of peace and love would prevail. Alas, it was to no avail. Reconciliation and healing of the relationship proved futile but the parties at least tried to reach a settlement of the issues between them and rather than supporting them in their efforts, the other attorney dismissed and undermined their efforts, and most shocking of all, the wife told her husband she was afraid to discuss their proposals with her attorney because her attorney would yell at her.

I have no idea why anyone would hire and pay fees to an attorney who would yell at them. And I later heard that the attorney put a lien on their house to collect her fees.

Lesson for me: Never underestimate people’s proclivity for conflict and the tendency of attorney’s to exacerbate the conflict to line their own pockets. Just say no to litigation.

For more information, visit us at www.lornajaynes.com

Given the high divorce rate in this country, just about all of us have been impacted in some way by divorce and custody/support matters. Perhaps it was our own family or parents or our own divorce, or simply a very close friend or family member. And with few exceptions, a majority of folks in these situations feel they lost too much or paid too much, received too little, or had a custody/visitation order that was “unfair” to them, and worse. 
Based on these experiences, we develop opinions and biases about how such matters should be handled. And of course, every judicial officer, as well as recommending Family Court Services mediators and custody evaluators, have their own personal biases. Consequently, the reality is that the same exact case may have very different results in different court rooms.

This is not to disparage family court judges who deal with complex issues (permanent removal of children to another state, custody, visitation, domestic abuse, determining real income, valuing assets (eg, closely held businesses) on a daily basis, with honor and integrity. But the inherent bias based on one’s experiences in many cases cannot help but bias the judge’s factual findings, their discretion, and how they decide to apply the law. This bias probably exists more in family law than in other areas. No amount of bias elimination training can make a judge forget about their life experiences, assumptions, personal beliefs/views and biases. Consequently, family law litigation can be unfair and inequitable.

However, most judges it is hoped, exercise enough self awareness to check in with their personal biases before making a ruling. And it is important to note that mediators and Collaborative professionals are no less immune to being impacted by personal experience as judges and others in the court system. We too are human beings with biases and must guard against forming opinions based on them. However, we are not judging and making orders, rather our role to facilitate a full and constructive dialogue between the parties that will enable them to reach their own agreement, so our biases have less impact. And ethical and conscientious mediators are very aware of the potential for bias and work hard to be neutral and unbiased.

Alternative dispute resolution processes, however, such as mediation or Collaborative Divorce allow you to fashion your own outcome instead of having a stranger (judge) decide your future and that of your children. Mediators and Collaborative attorneys do not decide – they help you make your own decisions. And furthermore, why pay the always substantial legal fees incurred in litigation, when a much less expensive process means those funds could instead be used to pay for your child’s college education. More often than not, litigation usually means going through the court process, several hearings, perhaps settlement or case conferences until, worn down by the conflict and fast becoming broke, you settle anyway. Why not focus on resolution (settlement) from the outset rather than pretending you’re going to go to trial and then settling anyway but only after wasting tens of thousands of dollars to get there. And last ditch, in front of the courthouse door settlements are almost always hasty, last minute agreements, rather than the well thought out and thoroughly discussed agreements generally produced in out of court processes.

I recently had of a case where the litigators managed to spend tens of thousands of dollars in legal fees before the clients decided to try mediation. It was readily apparent that the husband was willing to give the wife more than her lawyer would likely have obtained through litigation. And both clients felt that their attorneys would not be reasonable unless the retainer was used up and either no more money was available or the client refused to replenish the retainer account. All in all, a tragic waste of emotional and financial resources for nothing. The mediation, however, was positive, constructive and successful.

For more information, visit us at www.lornajaynes.com

As a Collaborative Family Law Attorney and Mediator, I am privileged to work with those who, because of their divorce, are undergoing a significant life change. Although a mediated or Collaborative divorce is far less painful, emotionally, psychologically, and financially, than a litigated divorce, it is still a divorce, and according to the Surgeon General, divorce is one of life’s greatest stressors.

So it is often helpful to rely on insights from some our spiritual leading lights to help lead the way and remind us to be present when stress and anxiety arise. These sayings can also help us get in touch with our own inner wisdom as we move forward into a new life after divorce. They are also useful reminders for all of as a new year begins.

Be kind whenever possible. It is always possible.” ~ Dalai Lama

If you want others to be happy, practice compassion. If you want to be happy, practice compassion.” ~ Dalai Lama

There is no way to happiness, happiness is the way.” ~ Thich Nhat Hanh

It is what it is, while it is.” ~ Elisha Goldstein

If we learn to open our hearts, anyone, including the people who drive us crazy, can be our teacher.” – Pema Chodron

As soon as we wish to be happier, we are no longer happy.” ~ Walter Landor

The fact is, we are not islands and we are far more connected than we know.” ~ Elisha Goldstein

There is no enlightenment outside of daily life.” ~ Thich Nhat Hanh

Realize that this very body, with its aches and it pleasures… is exactly what we need to be fully human, fully awake, fully alive.” ~Pema Chodron

After the ecstacy, the laundry.” ~ Jack Kornfield

A recent California Court of Appeal opinion upheld a grant of visitation to a grandparent over a father’s objection.

Child custody and visitation issues often give rise to the most high conflict disputes in a California divorce. If parents can’t agree about living arrangements, vacation schedules and the best educational environment for their child or children, these decisions may very well be made by a family court judge based on his or her assessment of the best interests of the children and the parents’ capabilities.

A recent California Court of Appeal Opinion in Hoag v. Diedjomahor considered a less common scenario: the court’s grant of visitation to a grandparent over a parent’s objection. The maternal grandmother filed for visitation following the death of her daughter, the mother of couple’s daughters. The parents had lived at the grandmother’s home, as had the mother and children alone during a period of legal separation. After the parents reconciled, the grandmother moved in with the family.

Soon thereafter, the mother filed for divorce, but died about a month later. The grandmother then petitioned for guardianship, claiming that the father was an unfit parent, and the father then countered with evidence of the grandmother’s prior drug use and the loss of custody of her own children years before. The court found that no issues of concern were raised from a Child Protective Services investigation and did not grant the guardianship request to the grandmother, but it did grant her temporary visitation.

Several months later, the grandmother petitioned for permanent visitation rights. The court granted the petition based on a mediator’s recommendation of a visitation schedule that included three hours of weekly visitation plus every other weekend. The court’s decision was based largely on its finding that the father was opposed to reasonable visitation and that his offers were “feigned at best and without any substance.”

Appellate Court Upholds Grant of Visitation to Grandmother

The father appealed the judgment for permanent visitation based on his constitutional due process rights. The California Court of Appeal reviewed the case primarily on the standard provided by the U.S. Supreme Court in Troxel v. Granville, which stated that the Due Process Clause does not permit state governments to infringe on the fundamental rights of parents to make child-rearing decisions “simply because a state judge believes a ‘better’ decision could be made.”

On review, the California court emphasized that child-rearing decisions are not immune to judicial review. While the law presumes that a parent is acting in his or her children’s best interests in proceedings involving a non-parent who seeks custodial recognition, the father had acknowledged to the trial court that visitation with the children was in the children’s best interests. Therefore, denial of visitation was essentially spiteful, and the court’s grant of grandparent visitation was proper.

Clearly, the specific circumstances behind every California family law dispute can make a big difference in the outcome. A California divorce lawyer will help a client understand the facts of his or her situation in light of current legal standards.

Visit us at www.lornajaynes.com