Archive for the ‘Divorce’ Category

» 21st Century Divorce Cases: The Mediation Process On Friday, December 26th, 2008

Divorce cases can be some of the most challenging and emotional legal actions. Indeed, divorce cases strike at the heart of the lives of those individuals that are the parties to these cases. As a result, courts have taken significant steps in recent times – particularly over the course of the past fifteen years – to attempt to find alternative courses of action that can assist in resolving divorce cases and keep emotions better in check along the way.

One of the more widespread developments that has taken place in regard to divorce cases as been the introduction of mediation into the process itself. Mediation is defined as being an informal system of negotiation that is overseen and managed by an independent third party. In the case of divorce cases, specially trained mediators are being appointed by courts to oversee this type of domestic or divorce related mediation.

In the past several years, courts in a growing number of jurisdictions have moved towards making mediation a mandatory part of the divorce process. Therefore, rather than some couples involved in a divorce voluntarily taking part in mediation, all couples divorcing in some jurisdictions must participate in mediation.

Mediation typically addresses a number of elements of a divorce case. In most jurisdictions, mediation will be engaged in to deal with issues surrounding child custody, child visitation (now commonly known as parenting time in many states), child support (although most states have specific guidelines pertaining to child support), property division, debt allocation and spousal support or maintenance.

There are a number of different ways in which mediation can be approached. For example, a mediator typically will schedule a series or separate sessions, each session designed to deal with one or another of the specific issues that have been discussed a moment ago in this article.

Ideally, through the mediation process, the parties to a divorce will be able to come to an agreement on all of these various and sundry issues. However, in many cases, this does not occur. However, the failure to obtain agreement through mediation on all of these issues does not mean mediation was not successful. In fact, it is more than likely that agreement will be reached on at least some of these issues.

Once the mediation process is concluded, the mediator (together with the parties) will report back to the court the extent and nature of the agreement that is reached between the parties. Such an agreement will be incorporated into the final divorce decree or order to the court.

As an aside, most mediators conduct their sessions with the parties to a divorce case without attorneys present. While attorneys may be present at an initial session in the mediation process, the bulk of the sessions are undertaken between the mediator and the parties individually.

In summary, mediation continues to play an ever increasing role in divorce proceedings. Indeed, even those jurisdictions that have yet to make significant use of mediation are looking towards incorporating it more broadly in their proceedings in the future.

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» Understanding How and When a Child Custody Order can be Modified On Friday, December 26th, 2008

One of the most important orders that issues in a divorce case involves child custody. Historically, child custody orders tended to be hotly contested between the parties to a divorce case. Because of the fact that custody of minor children born of marriage really impacts these children in a significant sense, courts have taken steps over the course of the past decade to reduce the conflict that oftentimes surrounded a determination of an appropriate custody order.

An area in which in an effort has been made to avoid unnecessary conflict between parents who are divorcing or who have divorced centers around modifications of child custody orders. As a matter of policy, courts desire that there be a sense of stability and constancy when it comes to child custody orders. Therefore, courts have gravitated towards limiting the instances in which a child custody order can be modified, towards restricting when an order providing for the custody of children born of a marriage can be altered.

With this in mind, in order for a parent to be able to prevail in altering or amending a child custody order that parent will need to demonstrate what is known as a “material change in circumstances.” In other words, there needs to be a demonstration in the circumstances surrounding a custody order that is so profound it literally in and of itself suggests that a modification of an outstanding custody order necessarily needs to be undertaken.

A material change of circumstances can be considered to have occurred if the custodial parent is considering a move out of the jurisdiction of the court and where the non-custodial parent resides. In a good number of instances when the custodial parent is intending to move out of the jurisdiction (out of state) the presiding court will look closely at the prospect of altering the custodial arrangement.

Other examples of material change of circumstances that may warrant an alteration of the custodial arrangement in regard to the children born of the marriage can include a situation in which the custodial parent ends up having an issue with alcohol or drugs. Sadly, in this day and age a significant number of custodial issues arise in instances in which a parent is confronting a problem pertaining to alcohol or drug usage. Again, the underlying situation in which a change of custody becomes warranted needs to be something very serious and profound.

In the final analysis, courts will not alter a custodial arrangement involving minor children on a whim. There really must be a profound reason as to why a child custody order should be altered. In the absence of agreement between the parents in regard to custody of children, a clear demonstration will need to be made that carrying forth with the current custodial arrangement will not satisfy the best interests of the children themselves or will prevent the non-custodial parent from being able to have a meaningful relationship with those children.

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