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What to Tell Your Divorce Mediator

Divorce mediation in Idaho has a high rate of success, even in difficult cases.  Divorce mediation is a unique process that is quite different from a family court trial.  You may be wondering what you should disclose to your divorce mediator.In short, the answer is, anything you like.

During mediation, your mediator will first obtain information so they can understand each of your positions in the case.  The mediator will then work with the parties to explore options that may potentially work for both parties, to settle each issue.  The mediator’s goal is to help the parties settle the case in a manner that both can find suitable.  Since the mediator has no decision-making power in the case, they do not weigh the evidence, consider what is admissible in court or advocate a position.  A mediator finds out what is important to each of you and discusses ways to address each concern.

During divorce mediation, any conversation you have with the mediator is kept private and confidential.  Although it is possible that you will discuss the case in the presence of your spouse, you may request to speak with the mediator privately at any time.  The mediator will not disclose any facts to your spouse without your permission.  Therefore, if you have certain concerns that you want addressed but do not want your spouse to know have been disclosed, you will simply ask the mediator to keep these points in mind as he or she helps mediate the case.

You may also have information that you want the mediator to know before you start mediation.Most mediators request or allow for a pre-meditation statement.  In this statement each party or the party’s attorney, may provide the mediator with a property list and who should get each item.  A debt list may also be disclosed listing each debt, the total amount owed, the monthly payment, and who should be responsible for each debt.  If children are involved, you may bring your children’s school calendars for the discussion of custody and visitation, and any other items that you feel are relevant to your case.  The mediator would also benefit from knowing how the two parties communicate with each other and whether there is animosity between them.

David Johnson is an attorney and divorce mediator located in Idaho Falls, Idaho.

Marital Separations in Idaho

Sometimes couples come to realize that they don’t want to continue living with each other but are not certain about filing for divorce. If this happens, you might consider alternatives to filing for divorce.

While Idaho courts do not have formal procedures for legal separation, alternatives are available. For example, the parties could enter into a separation agreement that establishes which person has what assets; who is responsible for various debts; and how income and resources are allocated. Issues such as child custody, visitation rights and spousal support could also be addressed, much like you would in a divorce proceeding. Separation agreements are not marital settlement agreements unless they meet specific requirements in the law. However, negotiating such agreements and putting them in writing are usually enforceable in cases such as driving under the influence (alcoholic), conviction of felony, or insanity.

Reasons for Choosing Separation

More couples are opting to separate rather than divorce. There are several valid reasons for doing so, including:

1. A belief that there is a chance of reconciling differences after some time apart.
2. Either you or your spouse find it less stressful to negotiate a separation agreement.
3. You and/or your spouse are opposed to divorce for moral or religious reasons.
4. The same may be beneficial to you, your spouse or children during the transition to becoming divorced.

A good family law attorney will know and be able to explain to you the pros and cons of separation and whether or not your situation in which it is appropriate to explore such options.

Divorce: Dealing with the Emotions

Conflict between the man and the woman

Making a decision to end a marriage is very difficult and stressful. According Holmes and Rahe Stress Scales, the most stressful rated event is the death of a spouse. Divorce was second and marital separation was third. Persons facing or going through divorce deal with the stress in different ways. This may include anger or blame towards the other spouse, depression, hopelessness, illness or capitulation. All of these emotions can influence your divorce in many ways.

Some of the better and more productive ways to get through this difficult period include:

  • Understand the process. Have your attorney explain the typical steps in a divorce case at the beginning of the case. Additional stress is inevitable if you are uncertain as to what is going on.
  • Understand what is likely to happen. Cases have a lot of variables and are subjectively determined. The outcome of cases depends upon the facts of the case, the attorneys, what the judge allows into evidence; all drive the opinions of the judge. Different judges generally place different weight of the same factors. However, an experienced attorney can give you some reasonable parameters of how a judge will decide as case based upon the known facts. Attorneys often talk in terms of “possibilities”, which the client may understand to be “probabilities.” Ask the attorney what he or she believes probably will happen, but only after the attorney has had a chance to understand both parties’ sides of a case.
  • Be prepared and knowledgeable. Information is power. As you prepare for a divorce, the more information you have and give to your attorney, the better off you will be. For example, knowing where all of the bank accounts, investments and retirements accounts are useful. Better yet, if you have statements of balances for each account. Copies of documents such as real estate closing papers and a description of property items (make, model, and year) can save a lot of time later. Your attorney can help fill in the gaps later on, but the more preparation you do, the better off you will be.
  • Understand when you are acting emotionally. It is certainly okay to be emotional. However, you need to be very careful with how your emotions effect your decisions. If you are angry, you may want to fight for things that you cannot realistically obtain. If you are depressed, you may give up things that you are both entitled to and will need for the future. In either extreme, if emotions affect your decisions, your problems are likely to increase in the long run. If/when a decision is based upon emotions rather than logic, you may need to rely upon a neutral advisor, such as your attorney. A friend who has gone through a divorce may seem like a good source, but oftentimes your situation is different than theirs and your friend’s emotions and bias may exacerbate your emotional decision making.
  • Take steps to be healthy. This includes exercise, diet, regular routines, sleep, etc. Sometimes seeing a counselor helps to talk through matters that are giving you anxiety. Typically even just a few sessions can be very effective. Others may find relief in support groups or in providing service to others. Sitting at home in front of the television generally does not help your state of mind. Also, find ways to enjoy your personal time, such as when the other parent has the child(ren).
  • Look at the big picture. People typically have a normal field of vision of 120 degrees. Moving the eyes and turning the head can give us 360 degree view of what is around us. Yet sometimes, particularly when we are in stressful situations, we may spend our time having an altered view of reality as looking at life through a virtual telescope or microscope, or perhaps we are standing too close to a wall” or “tree” that blocks our view of your true world each point giving a specific view, but without seeing all of the good things around us. Finding times to look for the beauty around us brings us contentment and joy. There will be sufficient time to address the problems in our life without the need for constant attention to the same. Have an attitude of gratitude.
  • Take responsibility for the way you feel. Some emotions are beyond our control. Others we can learn how to maintenance and control. Certainly others, particularly an estranged spouse can do things that will cause you to feel angry, betrayed, insecure, etc. However, you can decide how it will ultimately influence your life.
  • Avoid/minimize alcohol. Alcohol is a depressant and may actually increase your problems overall. In the short run, it may seem to calm you but in the long run alcohol does not help. In some situations it can cause major problems.
  • Emphasize the present and future, minimize the past. Even if you have had problems in the past, you can decide to change yourself for the better. Keep in mind that the Court decides a case based upon the evidence before them at the time of the divorce trial, which could be a year or so after the divorce was filed. Although you cannot erase the past, you can make sure the most recent history is most favorable to you.
  • Hire an attorney you can trust. In most divorces, the cost of representation is a major concern. Some attorneys attempt to generate a large fee by creating a lot of documents. Other attorneys may be too passive and fail to communicate effectively with you. Hourly rates are often misleading because a newer attorney charging a lesser hourly rate, but will actually spend more time doing a particular task. Finding an attorney you can trust and works the way you want them too will substantially reduce your stress and help you to move forward in a productive manner.

Divorce is not fun, but you can get through the process in a manner that will enable to you to move on with a productive and happy life.

The Secret of a Successful Divorce Is Preparation

Successful Divorce

No one likes the phrase “successful divorce” because divorce is, of course, a failure.  But anything in this world has a best-case outcome and a worst-case outcome, and any divorce that winds up closer to the “best-case” end of the spectrum can be classified as a success in the sense that it could have been worse for all involved.

Denial is probably the worst enemy of the successful divorce: Too many people fail to prepare for the possibility because they don’t wish to admit that their relationship is over.  But once you even suspect you may be heading to divorce, the smart play is to prepare for it properly – a little preparation does nothing to preclude the possibility of reconciliation.

Divorce Prep 101: Consult a Lawyer

People often think of “seeing a lawyer” as an irrevocable step in a divorce.  But a lawyer does a lot more than filing the papers to get the process started.  They can sit down with you and walk you through the implications and tell you point blank what you need to do then to avoid huge problems later.  You may not need to follow their advice if you reconcile – but if divorce does become a reality, you will have taken some basic steps to protect yourself and control the outcome.

Divorce Prep 101: Consult a Therapist

It doesn’t have to be an official therapist – it could be your parents, or your best friend.  The point is, when divorce becomes possible, it’s an emotional time.  A lawyer can help order up your financial and personal life in preparation, but you have to deal with your emotions as well.  Whether its anger, sadness, or confusion – your dominant emotional state will affect the decisions you make about your future, your children and your finances, and the smartest thing you can do is get those emotions under control.  That means talking things out with someone you can trust.

Divorce Prep 101: Don’t Be Spiteful

One of the biggest mistakes people make is believing that their emotional reaction to a spouse justifies anything.  If your spouse has been unfaithful or abusive, you might feel that you can bad-mouth them and hide assets as a way to punish them.

The opposite is true.  These attempts at punishment will backlash against you and hurt your chances of coming out of the divorce whole.  Stay in control and pursue legal remedies.

A Rational Solution for an Emotional Problem

Emotional Problem

Divorce has been part of life for about as long as marriage has.  Despite popular conceptions of divorce as a modern affliction, the ancient Romans had a thriving divorce rate, with the more affluent and rich Romans (especially in the later imperial period) frequently divorcing their mates in order to improve their social standing or purely as a political move, so they could marry the daughters and sisters of their allies or adversaries.

That sort of rational approach to divorce may sound cold and perverse to us today, but the fact is, divorce is a rational and legal mechanism.  It has a set structure of events and procedures, and is an attempt to impose a rational solution on what is essentially an emotional decision.  The most important aspect of divorce is this distinction between the rational and the emotional.

Don’t Step Back

As a result of the powerful emotions that lead to and flare up during a divorce, many people view divorce as a button they can push to automatically take care of the problem.  They come to the decision to end their marriage, hire a lawyer, and then try to step back from the process and let it happen without their direct involvement so they can be insulated from the gritty details.  This is one of the most important aspects of divorce: The more you’re involved the better the end result will be.  This is your life you’re making decisions about, after all.  As painful as it can be, your direct involvement in the decisions is essential.

Regret Is an Emotion, Too

Letting your emotions get in the way can lead to concrete implications, as well.  Divorce proceedings need to settle a vast array of details: Property, support, custody, visitation – just to name a few.  The more you’re actually involved in the process, the better the final terms will be for you.  If you let your emotions rule the day and pull back from the process in order to numb yourself, you’ll almost certainly look back months or years later and wish you’d been more involved, because the details of the final settlement are simply not as you would have preferred them to be.

Divorce is a tool, but it can be a blunt one if you allow emotional distress to remove you from overseeing the process.  One of the most important aspects of divorce is recognizing this dichotomy between emotional problems and rational solutions.

What You Need To Know About Relocation and Child Custody

Idaho Falls Relocation and Child Custody

Several decades ago, the idea of relocation was pretty foreign.  For the most part, child custody issues were pretty cut and dry: There was a custodial parent (most often the mother) and a non-custodial parent (typically the father).  If the  parent with custody planned to relocate, they were generally free to do so.  Today, the courts strongly consider both parents’ involvement in the life of the children important.  Father’s rights, in particular, have become a bigger focus as more fathers are concerned with being active in the lives of their children, and relocation concerns are often at the forefront of many child custody discussions.

Many fathers today truly share in the parenting of their children.  If a parent wants to relocate with the minor children, this creates a major issue for the remaining parent who wants to remain active in the lives of their children.  The law and the courts look primarily to see if there is a sufficient and reasonable basis for the children to be uprooted.  Frequent reasons for relocation include: A change in employment or job opportunity; remarriage to someone living in another location; and a desire to move closer to other family members.

How a court handles relocation cases depends upon several factors.  First, the court is looking at whether or not the pending matter is an initial determination (such as at the time of a divorce) or a modification of an existing order.  If no previous order or decree exists, the court will consider the reason(s) for the move and look to determine what the best interest of the children would be.  If a custody order or decree already exists, the moving parent needs to first show that there has been a “permanent and material change of circumstances” or in other words, a significant reason to support the children to move.  Once this is shown, the court will look at what is in the best interest of the children, like an initial determination.  Consideration also needs to be given to what the court order(s) and decree(s) say.  Many orders and decrees have specific language about how far the primary custodial parent can move without getting permission from the Court or the other parent.  Sometimes there is specific language regarding notifying the other parent of a contemplated move.

A move across town or even to a nearby town (30-50 miles away) generally does not require getting the court’s permission.  However, the other party may object to the move and may petition the court to either change custody or require the moving party to keep the children in the same schools, provide transportation, etc.   A move more than 50 miles usually has a larger impact on the ability for the parent having secondary custody to have reasonable opportunity to be with the children and to attend sporting events, concerts, parent teacher conferences, etc.   Longer distances also have a tiring effect on children who have to frequently travel between parents, which also interferes with their extracurricular activities and social events.  The “visiting parent” is often put in circumstances where he or she is perceived as interfering with the child’s desires.  My experience has been that over time, the amount of time spent with the parent having secondary custody becomes less and less.

Nevertheless, in many cases relocation is necessary and parents need to recognize what impact the move will have on the children and their personal relationship with the children.  If the opportunity presents itself when the parties are discussing relocation, some of the things that you may want to consider include:

  • Should you use a mediator to aid in the discussions?  Often having a mediator lead the discussions before the parties become entrenched in their positions could save thousands of dollars.  With relocation cases there is often a pressing need to relocate quickly.  If a new position is open, the prospective employer probably will not wait for the litigation to be completed before filling the position with another person.  Motions and supporting documents either requesting permission to move or to prevent the move are filed with the Court and take substantial time.  Meeting with a mediator quickly can save both time and money as explained in the material on my website, AttorneyIdaho.com.
  • What will work in the long run?  I have seen many situations where the parents enter into agreements that are not sustainable in the long run.  For example, people may agree to the same visitation as when the parties lived close to each other (such as every other weekend) .  However, with any significant distance,  the road becomes old  for everyone, particularly the children.  My experience has been that if the parties are within a couple of hours of driving distance, monthly visitations are generally workable.
  • What is each parent’s ability to transport the children?  Who should be responsible for what transportation? Some parents are very afraid to drive, particularly on slick roads.  Some parents do not have reliable transportation.  Other parents have work commitments that make it difficult to be at a particular place at a specified time (e.g. “halfway” at 6:00 on Friday).  There is also the question as to whether someone else can or should provide the transportation, such as a new spouse.  If the distance is great, airline transportation may be the best option.  This requires  the parties to consideration what airports are to be used (e.g. major airports are often used to allow for direct flights, age of the children,  the need and cost to have an escort, etc.  If unaccompanied, extra fees could be charged.
  • Where should parenting time take place?  Parents can think creatively on where to have parenting time.  If the distance between the parents is significant, some visitation could take place in the city where the children primarily reside.  This would enable the children to participate and parents attend or participate in extracurricular activities, etc.
  • What can be done on a regular basis?  A parent far away can still have regular contact with their children.  Discussion topics could include availability of the children at specified times, access to telephone, Skype, Facetime, etc.  Will both parents agree to have the necessary equipment? Length of call according to the age of child should also be considered.  For older children, will they be allowed to have their own phone for messages, texts, etc.?

An experienced family law attorney can help to guide you in making solid decisions in a relocation situation whether you are the one contemplating a move or having to decide how you should react to the other parent proposing to move with your children away from you.  Please feel free to contact us to help you with your situation.

How to Save Money on Divorce Legal Fees

Protect your moneyOne of the things that concerns people the most about a divorce is the cost of the legal fees involved.   Many people struggle to pay their regular monthly bills.  Adding the costs of a divorce, which could costs tens of thousands of dollars in legal fees, could be overwhelming.  There are things you can do to reduce the amount spent on your divorce.

If you and your spouse do not have children and can communicate well enough to agree on property division, it may be possible to do the divorce yourself.  Idaho has forms available for you to use (http://www.courtselfhelp.idaho.gov/individual-forms-instructions).  If you need help there could be a Court Assistance Office near you to assist you in making sure that the document are correctly prepared and you have the correct documents to file with the Court.  Some areas have an “attorney workshop” were you can go and ask an attorney questions about the law.  However, doing your divorce by yourself should only happen if you and your spouse are in full agreement about the things related to divorcing such as who will get certain property, who will remain in the home and who will pay which outstanding bills.  It generally doesn’t work if there are any real disputes or when children are involved.

Money can be saved by trying to mediate your divorce.  Through mediation, a third-party mediator can help you come to an agreement on the issues related to your divorce.  This saves time and money that would normally be spent on attorneys in court arguing the case.  While helpful for the parties to have some form of open communication for divorce mediation, the process is still most often effective even where disputes exist.

When you do use an attorney, divorce expenses can be reduced by the clients doing most of the legwork on gathering evidence, and providing full and complete information as requested by your attorney.  The more time you can do instead of your attorney or the assisting paralegal, the more you will save.

David A. Johnson has been providing quality legal services in East Idaho. As both a private attorney and as a former Bonneville County Prosecuting Attorney, Mr. Johnson has substantial courtroom experience. Mr. Johnson has handled cases all over the State of Idaho. His primary areas of practice are in Bonneville, Bingham, Butte, Jefferson, Madison, Fremont Bannock and Jefferson Counties. In addition, to Idaho Falls, we serve residences in the Blackfoot, Shelley, Firth, Rigby, Rexburg, St. Anthony, Ashton, Ammon, Driggs and Victor, Idaho. [Read more..]