Mediation in a Divorce situation can be emotional. These cases not only work towards ending a marriage, they also include dividing any assets and liabilities and determining how to resolve what happens with the children if there are any.
Often times parties get lost in the details because divorce is a very emotional process for many. In mediation the attorneys are often looking at property as numbers and how to divide it up, however, the parties are often looking at those numbers as memories instead. The parties aren’t interested in whether it is community property or separate property, they are interested in the memories created from that property. The attorney, on the other hand, is looking at whether they can prove that certain property is their client’s separate property or whether it is community property that is subject to division by the Judge.
Why is it important to differentiate between separate property and community property?
Separate property CANNOT be divided in divorce whereas community property can be divided. Further, in a divorce situation, all property is presumed to be community property and therefore subject to division. Mediation is a time where the attorneys assess the strength of their position if they are alleging that certain property is separate property. The mediator’s job is to assist the attorneys and parties in determining the strengths and weaknesses of their argument and to guide the parties towards a resolution.
When Children Are Involved
Typically the more emotional issues arise when children are discussed. Delving into the various scenarios of what works for that particular couple and their children are skills needed for any mediator. Taking a chance with the Judge often times results in a Standard Possession Order for one parent. When a Standard Possession Order will not work for the parties, mediation is frequently the solution because mediation allows for the flexibility to be creative in scheduling. There are many other issues that arise with regard to the children during a divorce such as;
- who makes decisions concerning their care
- who can apply for passports
- what international travel provisions should be in place
- how much child support should be paid
- how often should electronic communication occur
- should there be a geographic restriction in place
- and many other issues.
Through mediation and learning about the parties a resolution can be reached that works for that family rather than placing it in the hands of a Judge to decide what he or she thinks will work. A mediator uses his/her skills to gain insight into this family and uses his/her experience to know what can happen in Court to help the parties reach a decision that benefits everyone involved and creates a solution that can work for all involved.