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GETTING
STARTED
~
Going To Mediation ~
Disclaimer: The information provided herein is for informational purposes only and not to be taken or presented as 'legal advice'. Due to the individual nature and circumstances of each individual case persons are advised to seek actual court appointed Facilitator, Paralegal or Attorney's services before taking action in their own case. This information is presented as guidance and suggestions concerning the issues at hand and not as binding legal counsel or representation in any way, shape or form.
GOING TO MEDIATION
The purpose of mediation is to arrive at mutual settlements regarding custody, visitation, support and division of mutual property. In your Income/Expense declaration there should have been an attached set of paperwork labeled, Schedule of Debts and Assets. This will be dealt with in more detail secondary if children are involved. Usually the first objective in mediation is to establish temporary visitation, custody and support orders concerning the children.
As mentioned in the beginning, if you already have the children in your own, separate residence and are caring for them full-time then custody will almost 100% of the time remain with you. The courts are very reluctant to put children through any kind of change in residence so as to reduce stress for their part. There are only very few exceptions when custody is changed. This would be if the other party could prove with police reports evidence of extreme neglect, drug abuse, alcoholism, child abuse, sexual abuse or prostitution on your part. Without strong evidence of such, custody remains with the already custodial parent.. which in this case would be you since you are already caring for them.
AFTER MEDIATION.. THE FIRST COURT DATE
The mediation date will soon be followed with an initial court date. This is to allow the judge to establish temporary orders concerning visitation, support, custody and in some cases property division if you and the other party can walk in with an agreement signed by both parties, agreeing on who gets what. This is followed with the six-month period, during which either of you can request another hearing to modify the existing orders. What is supposed to happen during these six months is you and the other party hopefully reach what is called a Marital Settlement Agreement (MSA) so that your divorce can be finalized after the six month period is over. (6-month period may vary from state to state.)
This Agreement is also known as a Stipulation. The term Stipulation simply means that both parties have agreed to whatever terms they signed to on a sheet of paper.
It is not uncommon that one or even both parties cannot or will not find a way to part ways peacefully. This results in no MSA and either an agreement is worked out with the Mediator during yet another mediation meeting or the judge is give final decision on the matters of custody and property.
One way of encouraging the arrival of an MSA with the other party is to send, by mail, a list dividing up what you want and are willing to let the other party have. After doing this several times back and forth sometimes an agreement can be found and signed as a final copy to give the judge. It's worth a try, though if someone is unwilling to agree then there obviously will be no mutual agreement.
When you go to court there are a few things to keep in mind so as to represent yourself in the best way possible. First keep in mind the dress code for courtroom attire. Be neatly dressed but avoid jeans, shorts, halter-tops, low-cut dresses and T-shirts. You do not need to be in suit and tie. Something conservative that you would wear in an office setting is sufficient.
Next, if you bring an interpreter with you, be sure they tell you what the judge is saying, the other party is saying, and that they repeat to the judge anything you want said. If things get confusing, ask the judge for a moment to let your interpreter catch up. Your interpreter can only say what you say. They cannot offer up motions or statements unless you speak them yourself as though addressing the court.
Stay calm, speak clearly and to the judge.. not to the other party. Remain courteous and avoid any excess emotion in your statements. Do not resort to shouting matches or name-calling or you will find yourself being reprimanded. Possibly even found in contempt which will land you with a fine. Judges tend to listen to those who can calmly and clearly speak on the issue at hand with facts and short statements.
AFTER THE SIX MONTHS
It has been six months and by now you either have or do not have an MSA. (Marital Settlement Agreement) If not, try to get one with the Mediator. If you can arrive at one, you are practically set for green lights the rest of the way to finalization. Things to avoid during or shortly after the finalization would include the following.
Do not move beyond the distance allowed by the temporary restraining order. This is especially important if you have custody of the children. If you do this you may be found in contempt of the orders made and could be fined or given several days in county jail. If you do not have custody, but move, be sure to give your new address to the other party so that if another court or mediation date is set you won't be unaware of it. Not showing up can not only result in a fine, but also leave you unable to represent your input on decisions made with the court. It is your responsibility to make it possible for the other party to be able to notify you of court dates.
Do not go about selling or damaging mutual property. Let's say you have possession of a car, registered solely in your name. Aside from that you also have another car registered in both party's names which you also have possession of and are using for work, leaving the other party with no car. Even though the first car is solely in your name, it was purchased before your separation and therefore is considered mutual property. Meaning that until a judge's decision is made it is considered half-owned by the other party. But for whatever reason you decide to sell it and keep the money for yourself.
If the other party is awarded possession of the car you sold in order to divide the two cars equally.. the fact that you sold the car will mean you either will have to reimburse the other party for the value of the car or be willing to forfeit the car still in possession. Equally, if you hold possession of a car, or other valuable, which is awarded to the other party and deliver it in vandalized condition the other party can be awarded compensation paid by you to them in order to repair or replace the item. In the end you only hurt yourself. If the other party does this to you, do not hesitate to return to court with a motion for compensation of damages and possibly a Contempt of Court motion for failure to comply with a judge's order.
Do not harass, stalk or threaten the other party. Neither by phone, mail, messenger or other communication. If you do not have custody this will not help your visitation status in the least. You may in the end be denied visitation or allowed only Supervised Visitation and this will result in a higher child support amount for you as the non-custodial parent. If you already have custody you do not want to give the court reason to believe you are being an irresponsible parent.
CHILD SUPPORT ORDERS
There is much to be written on this subject and I suspect we'll not cover all of it at this moment. However some general guidelines are worth keeping in mind.
The first would be to resolve yourself to providing for your children if you are the non-custodial parent. Do not make your children suffer for the differences you have with your ex-spouse. In the long run it will only divide your children against you as they grow older to understand your unwillingness to provide for them. Do not wait until the court forces an amount upon you. Begin child support of your own free will beginning upon date of separation.
If you are the custodial parent, do not let the issue of child support go without enforcement. There are many things the District Attorney is required by law to do in order to help you collect child support. If you cannot at first get payment voluntarily, and you qualify for public aid, apply and begin receiving it as soon as possible. (This amount of monthly public aid will eventually have to be reimbursed by the non-custodial parent for failure to provide support.) Contained within this site are many resources available for you to find and collect support owed by way of legal revenue intervention. The District Attorney can and will act on your behalf to intercept support for you from the other party by confiscating bank accounts, income tax returns, wage garnishments up to 50%, denial of driving, professional or business licenses, liens against real property and credit report notations.
CHILD SUPPORT AMOUNT CONSIDERATIONS
The amount of support in the majority of states is determined according to a few key factors. There is even a common computer program used by the judge known as the 'DissoMaster' which calculates the amount of monthly support based on these items. These are;
Ø Your Income
Ø Spouse's Income
Ø Number/Age of Children
Ø Percentage of Time/Care for Children
If you are the custodial parent, which means your percentage of time caring for them is 50% or more, the amount of support will be increased as the percentage of time they are with you increases. Likewise, child support decreases the more time the non-custodial parent spends with the children. This is to encourage keeping both parents involved in the raising of the children. Those who refuse to visit their children end up paying the most support.
If the other party is not employed the court may 'reserve' (postpone) a decision on child support in hopes that the other party will be employed at the end of the six month period. A judgment on child support may continue in 'reserve' if unemployment persists and the children are receiving public aid. (AFDC, Welfare, etc.) The moment you ask to ask to be discontinued from any public aid benefits the District Attorney will likely seek reimbursement from the non-custodial parent and a child support monthly order from the court.
If the other party is unemployed and receiving Unemployment Benefits, the D.A. (District Attorney) will deduct a child support amount and forward the check to the custodial parent. The same applies if the non-custodial parent is receiving Worker's Compensation or other benefits due to injury which keeps them from working.
If a child support order is made during a time at which the non-custodial parent is gaining a good income, and later loses that job and finds a lesser paying job.. it is the non-custodial parent's responsibility to make a new motion to the court for re-calculation of child support amount. Until a new order is made, the original order remains in place. The courts will usually -not- allow the new amount to be retroactive and any unpaid balance will continue to accrue interest. Again, the new support amount, based on the lower salary, will not be in effect until a judge has heard and modified the monthly support amount.
Similarly, if the non-custodial parent wishes to spend more time with the children, and there are no Restraining Order limitations, the non-custodial party can make a motion requesting for re-calculation of support amount. This usually results in a lower, per-month support amount.
In many states, if the non-custodial parent is unemployed, but re-married and supported by income from the new spouse.. this can often be used as the criteria for determining a child support amount. If the non-custodial parent is gainfully employed, it is usually only his or her own income used in determining support amount.
FINAL RECOMMENDATIONS
There are two kinds of divorces in this world. Cooperative and Non-Cooperative. If you and your spouse are willing and able to agree to these issues on paper then you will find the judge is more than happy to finalize your case and send you on your way. However it is rare that this occurs and so it behooves you to be aware of the following option.
WHEN IT DRAGS ON
Often times one party will request endless 'Continuations', which is a legal term for a time extension, in order to slow things down and frustrate the other party. Continuations are usually granted to seek for legal counsel unless sufficient time has already been allowed for such. Continuations can be objected to if you can show that such a delay would harm you financially or make it unreasonably difficult to appear at a later time. These sort of decisions are left to the discretion of the Judge in your case.
If delays over property, custody, support or other issues continue to hold up your divorce finalization and you would like to re-marry soon, you do have the option of Bifurcation. Bifurcation is a term that simply tells the court that you wish to become declared as Divorced In Status Only, with all other decisions and matters to be handled 'In Reserve".. or separately. What this bifurcation of dissolution accomplishes for you is, if granted, a change in status to where you are legally single and able to re-marry while retaining a continued case to establish a settlement on your property and custody issues.
Presenting and obtaining a bifurcation is best handled by an attorney who can present the case properly so that all goes well. However you may wish to consult with a paralegal or your local court facilitator to see if you feel capable of representing it yourself. Once accomplished you can then proceed with the remainder of your case without the added pressure of bartering for finalization with your ex-spouse.~Henry Velez / Copyright 1999; all rights reserved.
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