How to Take the Fight out of Divorce

Inability to effectively communicate and negative emotions can prevent resolution of minor issues between divorcing spouses.

When facing divorce, the last thing any family needs is arguing and confrontation.  Just because two people fall out of love,  doesn’t mean they should try to hurt one another emotionally and financially. Divorces can be overwhelming, and are the cause of significant fear and anxiety for a lot of people.  What many people don’t realize is that “this doesn’t have to be the case.”  The best outcomes in divorce situations is when both parties put their personal feelings aside and view it as a business negotiation.  In fact,  data from the Project on Negotiation at Harvard Law School substantiates this position concluding that “good decisions are not made when there are negative emotions or fear.’

Many people have heard the term “mediation” and may loosely understand what it means, but don’t have a firm handle on what it can do for them in the context of divorce situation.  In Mediation, both  spouses come together,  for a few sessions, and use interest based negotiations to help them reach agreements on child custody, support and division of assets. After the agreement is reached, the mediator will typically draft a separation agreement. The mediator does not represent either party, and does not give legal advice. The function of the mediator is to assist parties in communicating, and to help them in forming their own resolutions to the issues that they have difficulty with.  Mediation can preserve a family’s financial resources, and may accomplish the divorce process in  less time and with less stress.

It is important to remember that not all divorcing spouses are going to be candidates for mediation.  If one person is using the mediation process in order to “strong arm” the  less-aggressive spouse into complying with his or her wants or wishes, this will be a waste of time.  Most mediators can see right through this and will end the sessions  if it becomes unproductive.  There are also no guarantees that a mediation can fast-track a divorce.  If the process breaks down at any point,  people may find themselves quickly lawyering up.

If a mediation breaks down, it doesn’t necessarily mean a divorce is headed straight to trial.  In Massachusetts, (and in a majority of states) most divorces have great potential to settle out of court simply because litigation is expensive and trials can be very time consuming and unpleasant.  In Massachusetts, several of the county bar associations offer conciliation programs which have assisted the courts greatly in resolving contentious cases that would otherwise go to trial.  These programs are staffed by volunteer family law attorneys who are trained and experienced.  They also function as third-party neutrals, so the process tends to move much faster and is more directed than a mediation. A conciliator can make helpful suggestions on how to resolve a case and may also write a report to the court on what options were discussed as part of the process.  Sometimes a session is broken down by dividing up into small groups so that each party feels as though they can speak freely if a case is especially contentious.  The success rate of conciliation is remarkable in Massachusetts.  Roughly 70% of the cases that are referred by the family court for conciliation are resolved and reported as settled.

Managing conflict is never easy, but it doesn’t have to be impossible.  A good mediator is open and understanding about different ideas, perspectives and experiences and has creative solutions that take each of them into consideration.  Taking the fight out of divorce spares couples time, money and anguish and is well worth the investment.

 

Helpful Tips for Co-Parenting During the Holidays

Source: Helpful Tips for Co-Parenting During the Holidays

Joint Custody 101

In decades past gender roles played a stronger role in determination of physical custody of minor children in Massachusetts divorce. Within the past 15 years, the recent trend of the family court is to award joint physical custody because it can help the children maintain an equal bond with both parents in a post divorce situation. Whereas the mother had always been the primary caretaker of the children, and father the breadwinner, this is situation is no longer the “norm” as it once was in Massachusetts child custody cases. Household roles and responsibilities have been redistributed in as there are more families depending on the incomes of 2 parents, as opposed to 1 in recent times. There are drawbacks, naturally, but this has been the direction of Massachusetts Family Court rulings in recent years.

Massachusetts Joint Custody has progressively become more popular

One litigant inquired whether or not her job, which involved the sale of sexually photography of herself, would be a determining factor in her soon to be ex-husband obtaining a joint physical custody arrangement as opposed to her being awarded sole physical custody – even though she had been the primary care taker.

The Massachusetts Family Court is not altogether concerned about the explicit nature of peoples jobs, so long as the children were not exposed to it or harmed by it, and are not likely to be harmed by it in the future. There are many people who work as exotic dancers, for example, who are still caring and responsible parents. It may comes as a surprise that professions of this nature are not likely to have as much of an impact on whether or not you have joint physical custody as much as other factors, such as the proximity of where you both now live, and the other parties willingness and ability to participate actively in the children’s lives.

The Massachusetts divorce court is also mindful of the importance of routine and stability, and will try to maintain that for the children. If a party had never been involved due to his job and that it prevents him from performing day today parenting duties, that is a legitimate reason why joint physical custody in Massachusetts would not be practicable. Moreover, one could successfully argue that even if this were not the case, changing a prior established routine would unduly harm the children and may thwart an attempt of the other spouse to obtain an joint physical custody award in Massachusetts.

A Massachusetts divorce attorney at the Wright Family Law Group should be consulted to discuss the viability of any proposed joint physical custody arrangement in Massachusetts.  Call us today for your free, no obligation consultation.