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FAQ'S
What is divoce
mediation all about?
How do I get started?
How can I find out if mediation is right for my situation?
How can I find out more?
How does mediation put the children first?
When do I get divorced?
What if my spouse has verbally or physically abused
me?
How will divorce affect my credit?
Why mediate when I think the Court will rule in my
favor?
What effect will fault have?
How does mediation compare to and fit in with marital
counseling, arbitration and litigation?
What if I want to mediate a separation but my spouse
wants marriage counseling?
How do we tell the children we’re getting separated/divorced?
What is my attorney's role in mediation?
Can you refer me to advisors such as counselors, financial
planners, CPA's, appraisers and lawyers?
What is Divorce mediation all about?
-Whether your situation is simple or complex, we progress
at a pace comfortable for both parties to help you . . .
Put your agreement into a binding contract of separation.
Analyze assets, liabilities and cash flow to help both parties determine
needs and interests.
Achieve a fair division of assets and payment of liabilities (equitable
distribution) in creative ways.
Focus on plans for the future in a realistic manner.
Look at the how you’ve been living and how you can realistically
expect to live in the future.
If you’re unemployed or employed part-time, to explore and
compare what it would mean to stay home, to go back to school, or
to seek new job skills or other employment without the discussion
being used against you in court.
Explore good options that a judge wouldn’t even consider.
Avoid the needless waste of time and expense incurred in putting
on evidence to help the judge reach a decision that you two could
reach yourselves now with the help of a mediator.
Avoid the constraints of the law that may force a decision that
neither party likes.
Avoid the complexities regarding the law and your finances that
make putting the evidence before the judge very expensive.
Preserve the informality and confidentiality of mediation that allows
a quick and yet detailed review of finances and options.
Keep the children out of the separation and divorce process.
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How do I get started? (click
here for answer)
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How can I find out
if mediation is right for my situation?
Call us for a free evaluation of whether
mediation is right for you, even if . . .
you are still living together and you are thinking of separating
you and your spouse have already resolved many of the issues and
you just want your agreement put into a binding contract
if you are already in court
if you feel there might be too much anger involved
if you don’t like conflict and the stress is getting to you
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How can I find out more?
In our free evaluation, we’ll explain
. . .
how to introduce your spouse to mediation as a peaceful way to separate
how mediation can help reduce the tension and stress
how to use a lawyer as part of the mediation process
how to stay in control of the legal process
how to keep costs down
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How does Mediation put the children first?
Mediation allows you to put the children first.
You as parents make all the decisions, not a judge.
The children are able to see you two working together as co-parents.
Your parenting plan can have the built-in flexibility that a judge
would not give you.
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When do I get divorced?
After your case is settled in mediation, the attorney mediator will
draft your agreed terms into a binding contract which you will present
to the judge as a part of a no-fault divorce. Virginia law doesn’t
allow our mediators to file your divorce. (top)
What if my spouse
has verbally or physically abused me?
Mediation may be inappropriate if there is a history of physical
abuse. If you believe you are a victim of verbal abuse, threats,
intimidation, demeaning comments, condescending remarks, etc., call
us for a pre-mediation screening. You might also call the Rappahannock
Council on Domestic Violence office at 540-373-9372 (24hr hotline:540-373-9373)
or visit the National Domestic Violence Hotline website at www.ndvh.org
.
Our mediators are trained in spotting and handling dominance and
control and will discuss with you privately how we, with the help
of your attorney if necessary, will empower you to negotiate as
an equal with your spouse. (The parties often put on their best
behavior in the presence of the mediator.) From time to time the
mediator can meet with each of you separately and confidentially
to make sure you are comfortable with the process and to explore
the facts, issues, options, etc. You can even have your attorney
attend the mediation session.
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How will divorce affect my credit?
“Divorce can spark money problems for both spouses”
reads the headline of an Associated Press article printed on page
D5 of the May 9, 2002 Free Lance-Star newspaper in Fredericksburg,
VA. When couples split up, their two households cannot be managed
as easily as their previous one household. Often it takes a close
look at the budgets and a flexible arranging of the assets to find
a solution acceptable to both parties. When you decide to let the
judge decide for you and focus on proving your case in a courtroom
battle, you give up your chance to explore the kind of creative
options not available to a judge. As a part of the mediation process,
its helpful to make a detailed review of your expenses, debts, monthly
payments and balance of principal due. You might consider obtaining
your credit report and credit rating from one of the following national
credit reporting bureau’s:
Experian. Website: www.experian.com
or call 1-888-EXPERIAN (888-397-3742)
Equifax. Website: www.equifax.com
or call 1-800-685-1111
TransUnion. Website: www.transunion.com
or call 1-800-888-4213
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Why mediate when
I think the Court will rule in my favor?
Why incur the time and expense of litigation when mediation is less
costly in time and money. A mediation session can usually be scheduled
within 72 hours. If you know what you expect from the judge, then
that expected result can be your goal in mediation as well. We call
going to court your Best Alternative to a Negotiated Agreement (“BATNA”).
If your goals aren’t reached in mediation, you can always
proceed in court and you’ve hardly lost any time.
But even the most just cause doesn’t have it easy in the courtroom.
Did you know that Virginia Supreme Court Justice Cochran called
litigation “civilized warfare.” Such wars are time consuming
and expensive. The Virginia Supreme Court has made it clear that
if you want a decision, your attorney must spend the time and you
must incur the expense to gather the evidence and present the case
even if the case lasts longer than you were married and costs more
than you’re fighting over. Here’s what that court said
in the case of Hodges v. Hodges: “We are not unmindful of
the frequent burden, difficulty, and expense involved in this process,
but the responsibility of the trial court is not removed or lessened
by these. The burden is always on the parties to present sufficient
evidence to provide the basis on which a proper determination can
be made, and the trial court in order to comply with [the equitable
distribution law] must have that evidence before it before determining
to grant or deny a monetary award.”
Consider the written opinion of Spotsylvania Circuit Court Judge
William H. Ledbetter, Jr. in the divorce case of Foiles v. Foiles
CH88-137 and CH88-148:
“Given the relative simplicity of the issues involved in
this case, the short duration of the marriage, the minimal amount
of marital assets, the modest incomes of the parties, and the parties’
joint custody agreement, it is nothing short of amazing that this
litigation has been so protracted and contentious. Mr.and Mrs. Foiles
lived together as husband and wife for about two years. They have
been litigating for twice that long. More than 1,200 pages of transcribed
testimony, and dozens of exhibits, comprise the record. Briefs and
memoranda have belabored almost every disputed point. The commissioner’s
hearings extended over four days. Transcription costs are in excess
of $4,000.00. The commissioner’s fee (which the court finds
to be fair and reasonable) is $4,000.00. Mr. Foiles’ counsel
fees approximate $14,000.00, and Mrs. Foiles reports counsel fees
exceeding $11,000.00.”
Mr. and Mrs Foiles were married 1986 and separated in 1988. The
divorce suit was filed in1988, but the final decree of divorce was
not entered until 4 years later, in 1992. Another costly case in
time and expense was Wagner v. Wagner, 16 Va. App. 529, where the
parties were separated in 1982, filed for divorce in 1983, got divorced
in 1984, but the case was appealed and the appeal wasn’t decided
until 1987, the appeals court sent the case back to the divorce
court which re-heard the case in 1988, that decision was appealed
and the 2nd appeals court decision was made in 1993 (10 years of
litigation).
Are you ready for a system that refuses to overturn a decision
based on clear perjury, such as was tolerated as recently as Nov.
20, 2001 in Price v. Price in the Richmond Circuit Court No.HQ-1496-4?
“..as much as the court dislikes the idea of letting husband
have a divorce through what the court is convinced was perjured
testimony, the divorce will not be disturbed...”
Once you’ve spent time as a party to a lawsuit, you start
understanding the meaning of the gypsy curse: “May you have
a lawsuit in which you know you’re right,” and why Abraham
Lincoln said “Discourage litigation. Persuade your neighbors
to compromise whenever you can. Point out to them how the nominal
winner is often a real loser -- in fees, expenses, and waste of
time.”
To avoid needless legal fees, expenses, and waste of time call
Virginia Mediation at The Mediation Center, Inc., 1119 Caroline
St., Fredericksburg, VA 22401; telephone (540) 373-1848 and allow
our attorney-mediators to help you settle your case.
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What effect will "fault" have
on the division of assets if I go to court?
Many separations are not mutually agreed upon, but are the result
of some actual fault or perceived fault during the marriage. When
parties come to mediation, the issue of how fault would affect the
outcome of the parties case if it went to court serves as a guide
to how it should therefore affect the outcome of a mediated settlement.
The following cases might be considered in your evaluation of the
effect of fault in your unique situation. Remember, in mediation
no proof is necessary, but in court everything must be proved. If
the case doesn’t settle in mediation then not only must you
prove your facts about the fault, but you must prove that the fault
had a negative effect on cash flow and/or assets or increased debts.
The case of Aster v. Gross, 7 Va.App. 1, holds that “fault
in the dissolution of the marriage represents only one of the factors
in Virginia Code § 20-107.3 and should not be used to punish
economically....” Ray v. Ray, 20 CIR.C16338 (1996) adds “marital
fault cannot be used to justify an arbitrary or punitive award.
The wife cannot receive a greater division of the marital wealth
because of the husband’s marital fault.” However, these
cases do not hold that fault can’t affect the financial outcome.
The fault must affect the family finances or the nonmonetary factors
set out in the Virginia Code. It is not the fault itself, but the
proven effect of fault, that the judge considers once fault is proved.
The Aster case and a case named O’Loughlin v. O’Loughlin,
20 Va. App. 522, “appear to state that where fault has either
a direct impact on the value or identity of property, or directly
affects the nonmonetary factors of the statute, it is a proper consideration
of the court.” This quote is from a book entitled “Virginia
Family Law” 3rd Edition, written by Peter N.Swisher, Lawrence
D. Diehl and James R. Cottrell, published by the Harrison Company,1327
Northbrook Parkway, Suite 400, Suwanee, GA 30024-3586. Contact the
publisher at (770) 277-8600 or on the web at www.harrisonlegalpub.com
.
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How does mediation
compare to and fit in with marital counseling, arbitration and litigation?
You don’t want to participate in a process that will create
more conflict than you already have. Thus you start with discussions
between yourselves. When that doesn’t work, you meet with
a marriage counselor. While engaged in counseling, you might need
a trial or temporary separation which one of our mediators can help
you achieve. If it appears that a divorce is inevitable, you and
your spouse can stay in control of the split-up by making the mediation
session the place where you and your spouse negotiate with the help
of your mediator and if you desire, advice from your lawyers. Arbitration
is rarely used in divorce cases, but it would be a way to have a
third-party make decisions for you without the formality, time and
expense of litigation. Arbitration is a way to get a non-binding
advisory opinion to help resolve a single, difficult issue. Litigation
is what you’re stuck with when counseling and mediation don’t
work for you. Unless domestic violence is involved, it should usually
be a last resort since it can, and usually does, escalate the conflict.
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What if I want to mediate a separation
but my spouse wants marriage counseling?
Negotiators know that often the quickest and most peaceful way to
get what you want is to give the other party some of what they want.
Stephen Covey in his best-seller “7 Habits of Highly Effective
People” says that you should begin with the end in mind. Don’t
rush things. (Haste makes waste and messy divorces. Don’t
corner a snake. Etc.) If you’ll go to marital counseling and
explain your situation, the counselor can help you introduce mediation
to your spouse. The counselor will help you and your spouse see
each other’s viewpoint, understand each other’s feelings
and therefore help your spouse see the reality of the situation.
Mediation then becomes the next logical step. (top)
How do we tell the children we’re
getting separated/divorced?
The best rule is to tell your children enough so they are prepared
for the change to come in their lives but not so much as to frighten
them. The key to talking to children about divorce is to use neutral
terms while describing the truth and avoiding the assignment of
blame. ” Great care must be taken to avoid letting comments
slip which are critical of the other parent or which share a “fact”
which points a finger at the other parent as the cause of the problems.
“Children identify with their parents?they see themselves
as being similar to each of them. A child’s self-esteem is
quickly lowered by negative comments about either parent. Criticizing
your former spouse, therefore, is the same as criticizing your child.
”
The decision of when and how to tell the children is just one of
the many issues that the mediator will help you discuss and resolve.
To avoid the anxiety, tension, and fear of mishaps when telling
the children, some couples prefer to have the children attend a
mediation session where the mediator can help assure that the situation
remains calm and focused properly and that the children’s
questions are addressed in a neutral manner. (top)
What is my attorney's role in mediation? (click
here for answer)
(top)
Can you refer
me to advisors such as counselors, financial planners, CPA's, appraisers
and lawyers?
Information coming soon . . .(top)
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