ACCESS TO JUSTICE

Access to justice is fundamental to any civilised society. Recently however we had the absurd situation where the Law Society had to take the Community Legal Service to Court for a review of its tendering process for legal aid in circumstances where and by severely cutting the number of law firms that could offer a legal aid service, access to legal advice and representatives was crudely reduced. Although the Law Society won that round, we now hear rumours that legal aid will potentially no longer be available for many family cases and only on Thursday the Justice Minister, Jonathan Djangoly, indicated on the radio that people in family breakdowns are using court too often and that the Government is determined to look at this, with mediation being viewed as a positive alternative.

Of course lawyers came in for criticism, being blamed as lacking knowledge of the mediation process. Well I have news for Mr Djangoly, many lawyers, myself included, have trained as mediators and collaborative lawyers and invariably promote these methods as alternatives to traditional negotiation techniques or litigation. In my experience and for good reason not every client wants to go down those routes and without a commitment to the process neither mediation nor collaboration will succeed. However, just because those options are repudiated, doesn’t mean that everyone wants to go to court. In fact I would struggle to think of any client for whom the issue of court proceedings has been anything other than a last resort. Experienced family lawyers will always endeavour to encourage clients to settle disputes by whatever method is the most appropriate for their circumstances and, more than anyone, are fully aware of the cost and trauma that court proceedings can inflict.

A CONFLICT OF LAWS

Why is it that the media has twisted remarks made by Lord Phillips the Lord Chief Justice? In a speech at the East London Muslim Centre, reminiscent of comments by the Archbishop of Canterbury not so long ago, the Lord Chief Justice is reported as saying that Sharia Law has a place in the English Legal System but that severe physical punishments such as flogging, stoning and the cutting off of hands would not be acceptable. The Lord Chief Justice was, of course, talking about the possibility of parties agreeing to use Sharia law as a basis for mediated settlements rather than using court proceedings, whilst emphasising that there is no question of Sharia courts sitting in this country and that so far as the law is concerned those living in this country are governed by English and Welsh law.

The Archbishop of Canterbury was pilloried recently for suggesting that Sharia law should be embraced giving the example of family disputes in particular. The Lord Chief Justice, however, pointed out that our system already goes a long way towards accommodating this suggestion. Indeed my own experience in divorces concerning a dowry is that in cases between Muslims, Sharia requires the woman to keep her dowry and this is inevitably the anticipated outcome. Conversely though the Lord Chief Justice was clearly not suggesting that women oppressed and treated unequally by a set of legal principles should be forced to agree that their future financial position will be determined by Islamic religious law and nor that the talaq (where a husband can divorce a wife simply by reciting “I divorce you” on three separate occasions) should apply.

As Resolution stated in response: “ Individuals should be allowed the freedom to govern their lives in accordance with their religious beliefs provided that those beliefs and traditions do not contradict the fundamental principle of equality on which this country’s laws are based.

There’s a strong history of religious law living alongside civil law in this country, and certainly mediation and other forms of dispute resolution are useful methods for people to use to resolve family disputes but they must be used to find solutions which are consistent with the basic principles of family law in this country and people must always have redress to the civil courts where they so choose”.

How to Get A Divorce If You Want Your Kids to Lose...

Reformed "killer" divorce attorney turned mediator, Cynthia Tiano shared with me some insightful information from a mediator's point of view. It is so sad to see what can happen when a divorcing couple chooses a nasty divorce battle. The children wind up being the biggest losers. Read on:

"I read an article about a divorce custody fight in one of the major local papers down here in South Florida. Even for a reformed "killer" divorce lawyer turned divorce mediator such as myself, it made me sick to see what can happen when the divorce process spins out of control. This case truly epitomizes how to get a divorce if you want your kids to be the ones who really lose.

In this divorce case, each of the parties hired the highest-powered, gun-slinging divorce lawyers that money could buy. The problem in this case was, as it often is, that one of these people had a whole lot more money than the other. A divorce agreement made between these parties after they got married in the event they ever got divorced, stacked the deck against one of the parents.For years they fought it out, up and down the court system, spending hundreds of thousands of dollars on legal fees.The end result was that one of these parents had to pay the other parent so much money, as decided by the divorce court, that they actually became a fugitive from justice, totally preventing them from seeing their children! If they showed their face, they would be thrown into jail.

Who is going to suffer here? Sure, one of these parents has been a "winner" (if you can call destroying your co-parent a win) and one has been a loser in this divorce child custody fight. But any kid who can’t even see one of their parents because of a bitter divorce custody battle is the real loser.I can’t help but wonder how different this family’s lives would look today if they used divorce mediation to create a peaceful divorce instead of the adversarial divorce process, which pits them against each other from the start. I’ll bet it would look a whole lot different. I hope that one day this family decides to learn how to get a divorce the peaceful, healthy way. "

Cynthia Tiano, Divorce Attorney/Mediator and Dr. Max Vogt, Marriage and Family Therapist, take you on an adventure into the lives of two families going through gut-wrenching divorces, and learn from their experiences in their new book, Happily Divorced: Secrets of the Win Win Formula. Click here get get a free copy of their groundbreaking ebook "The Ten Worst Mistakes You Can Make When Getting a Divorce"

Celebrity Proves A Peaceful Divorce Is Possible...

Actor Robin Williams, who is divorcing his wife of 19 years, has vowed to have a peaceful divorce and plans to work with his soon to be ex-wife to keep their divorce as civil as possible.

Williams has said "We will strive to be honest, cooperative and respectful as we work in this process to achieve the future well being of our families,"and "We commit ourselves to the collaborative law process and agree to seek a positive way to resolve our differences justly and equitably."

After the recent onslaught of bitter Hollywood divorces-Paul McCartney/Heather Mills, Denise Richards/Charlie Sheen and Hulk Hogan and his wife Linda, to name a few, it is wonderful to see a celebrity set a good example by handling his divorce in a fair and dignified manner.

Hopefully more couples will follow the Williams' example and strive for a peaceful divorce. Couples who settle their divorces amicably are better able to co-parent their children together, have kids with less emotional problems and save a fortune on attorney fees. It is possible, although not always easy, to avoid a costly divorce battle. It takes putting aside your own emotions and anger and doing what is best for your family. If a couple can work together and come to a divorce settlement either on their own or with the help of a mediator, they will save themselves and their children stress, heartache and money.

OF RELEVANCE TO MERE MORTALS

In anticipation of the final judgment in the McCartney v Mills divorce on Monday 17 March, Resolution issued a press release today pointing out that although the sums of money involved in this case are far removed from the experience of most separating couples, it does raise a number of issues relevant to more ‘normal’ divorces.

Firstly, a high-conflict court battle is not the inevitable end to marriage breakdown, even when there is a lot of money on the table. The traditional approach to divorce involves two solicitors who rarely meet and who focus on representing one side of the split in and out of court. In contrast, mediation and collaborative law offer couples an alternative. With everyone sitting round the negotiating table at the same time, conflict can be reduced and couples are encouraged to reach agreements together, rather than having a decision ‘imposed’ on them by a judge. Collaborative lawyers work with each other during structured meetings with both the husband and wife to reach agreements that suit all the family – especially children. In this way, collaborative agreements are much more flexible than the court process, as couples are not obliged to follow the letter of the law and can instead agree to something different that works for them.

Secondly the need for pre-nups that stick. When courts decide how to divide up the marital pot, current legislation creates a great deal of uncertainty around who will get what. It’s this uncertainty that leads people to rely on expensive court battles and the interpretation of the law by individual judges. With second marriages on the increase, more and more people want the security of a pre-nuptial agreement to end this uncertainty. Resolution lawyers argue that the law is out of step with the demands of the modern family - a divorcee with children may be put off marrying a new partner preciously because the current law doesn’t protect money and property acquired before the relationship. Resolution is calling for legal changes to make pre-marital agreements binding, allowing people to take control of their own financial future rather than relying on the current lottery of divorce court hearings.

Thirdly that when assets acquired individually by a husband and/or wife are brought into a marriage this can be taken into account when finances are divided as a result of divorce, especially if the assets are considerable or if one party has made what the law terms an ‘exceptional contribution’ to the marriage. The usual position, however, is that a marriage is considered to be a partnership of equals, assets acquired during the marriage fall to be divided equally and unequal contributions are only relevant where it would produce an unfair result not to consider them differently.

Fourthly that the length of the marriage is of relevance. Sir Paul McCartney and Heather Mills were married for a relatively short time. The effect of the shortness of the marriage may be something mentioned in the judgment. Shortness of marriage can be important but only as one of the factors to be taken into account.

Finally, financial proceedings in family law cases are normally conducted in private. This encourages the parties involved to negotiate with each other, even when there is extensive media interest. Usually judgements are not made public. The judge in the McCartney v Mills case has indicated that he intends to make part of the settlement public due to the level of media interest in the case.

Is Your Divorce Attorney A Money Hungry Shark?

I coached a woman today who is going through one of the worst divorces I have ever seen. I thought my divorce was terrible, but this woman's divorce made mine pale in comparison. She is approaching her third year in litigation with no end in sight. I won't go into details here for privacy issues, but the reason her divorce has not settled is because of her crazy husband and his unethical divorce attorney.

It is funny how the law of attraction works. Like attracts like. So her out of control, devious husband has attracted a lawyer who is just like him. Her own attorney informed her that her husband's attorney is not interested in settling because he always goes to trial, that is how he makes his money.

How sad that the average cost for a divorce is reportedly $106,000 per case in some areas of the U.S. That money could be used to put a child through college, instead it is squandered on high price lawyers who prey on their clients, knowing their clients are in a highly emotional state.

Of course, not all divorce lawyers are bad. There are some caring, kind divorce lawyers who genuinely want to help their clients. Many of them practice collaborate divorce law and work with mediators to try and settle the cases they see as quickly as possible. There is also the argument that many aggressive divorce lawyers are just doing their job, trying to win the case for their clients. But at what cost? If you know that your client is lying and trying to cheat his or her spouse how do you represent someone like that? You wonder how they sleep at night.

I think it all goes back again to theory that we attract like minded people into our lives. If we are angry and vengeful we will attract angry, vengeful people. Until divorcing couples wake up and realize that fighting during divorce is only going to bring misery, there will still be plenty of hungry divorce lawyers looking to make a fortune at their expense. When couples remember that it is possible to divorce and be kind and fair, then they will attract the same kind of lawyers and mediators who can help them settle their divorce fairly and quickly.

D DAY

7 January is widely regarded as the day on which most couples file for divorce. Evidence suggests that for many families, far from being a relaxing break, the Christmas holiday is a time of huge stress. Instead of fixing troubled relationships, it can be the final straw.

Add to this the financial strain early January brings, the reality of returning to work, no let up on the cold weather and relationships can come under intolerable pressure.

Acrimonious breakdowns can have a devastating effect on families, especially on children, and should be avoided at all costs.

An estimated one in three marriages ends in divorce - a painful and often long-winded process with significant emotional and financial costs. Collaborative family law is a relatively new process that aims to reduce conflict. It offers an alternative to the traditional divorce process in which couples agree not to go to court and instead work out solutions together.

More and more people are taking the collaborative approach and identify three key benefits; it’s a private process, it’s less contentious than going to court - and therefore less anxiety ridden - and the outcome is often fairer for both parties because they have reached it together.

What’s more, it sends out remarkably positive signals to children who benefit hugely from knowing that their parents are working out their differences together.

Resolution lawyers and mediators can help separating parents to reach agreements without the need for costly court battles.

Can you Be Friends With The Ex?

Is it really possible to become friends with your ex after the divorce is final? Several celebrity couples have done just that. Demi Moore and Bruce Willis even vacation together with the kids and Demi's new husband, Ashton Kutcher. Christie Brinkley and Billy Joel have also remained friendly for the sake of their daughter.

But can couples in the real world not only get along with their ex, but actually become friends? There is a company whose mission is to do just that, to educate the public about the benefits of going to mediation before engaging in costly, traumatic litigation and leaving the decision-making to their lawyers and Judges. DivorceDoneRight will encourage couples to go to mediation first, and benefit from its concept of a "Successful Divorce(TM)", which helps couples resolve family conflicts and divorce in an amiable and cost-effective manner, usually within a few months.

This can only benefit the children. All divorcing couples should try to put their differences aside and develop a good relationship for the sake of the kids. However, there are certain circumstances that may prevent a future friendship between ex-spouses, such as any sort of verbal or physical abuse. Clearly both parties have to cooperate and be willing to let go of past anger and resentment.

It is a great concept and it would be wonderful to see more amicable divorces where children are not put in the middle. The children will benefit enormously by seeing that even though their parent's marriage did not work out, they can still have a respectful, healthy relationship with each other.

The 9 Questions You Must Examine In Mediation

1. Custody.
Care of the children is your most important concern. If custody is shared, what are the terms? If it is not, what is the visitation schedule for the non-custodial parent? Don’t forget holidays and summer vacations.

2. Housing.
Who will retain the family home? Will the martial home be sold and equity split equally? Or will one party keep the house and buy the other out? (In my own divorce I kept the family home. I waived alimony payments in exchange for equity in my home. Alimony is taxable but the equity in your home is not, so keep this option in mind)

3. Alimony and child support.
How much will go to whom?

4. Tuition.
Who will pay for school tuition? Will he pay for private or public universities? Might issues regarding paying for tuition become an issue later? Don’t rely on oral promises, ”Of course I will pay for college!” is often said at mediation but not committed to writing. Unfortunately, in most jurisdictions, once a child is 18, there is nothing the Court can do to force a parent to pay for college.

5. Division of stocks, bonds and other investments.
What is the proper division/liquidation of stocks, bonds, bank accounts, and other holdings and investments? What about the 401K plans, retirement funds, and life insurance? How will this be divided? A minimum amount of life insurance should be a provision of every divorce settlement, without exception.

6. Marital debt.
Who borrowed what? Who charged what?

7. Determination of incomes.
Who made more money? Who contributed what, and what are the values of those contributions?

8. Wills.
Will you have wills drawn naming the children as the beneficiaries?

9. Health insurance.
How will health insurance be addressed?

If you are going into mediation, remember that every aspect of your financial life with your spouse has to be closely scrutinized. These will be weighed in terms of your lifestyle and your standards of living, both together and apart. You will need to itemize all household expenses, household contents, properties, bank accounts, retirement plans, vehicles, furniture, and other items of value. Make sure you take into account all childcare costs, including daycare, religious education, sports, and other after-school activities and lessons. Consider the cost of birthday parties attended, lunch money, school dues, clothing, and camp. If your children are young, adjust for expenses as they grow, and include those projections in your plan.

It’s best for you and your spouse to gather all of this information beforehand; doing this together can be useful. If you find yourselves disagreeing on something, set it aside. Agree to bring up all disputes only when you are with the mediator. If you can do this, then mediation might be the route for you. If you have problems with your spouse while gathering information, it may be a sign of bad times ahead.

Using A Mediator To Settle Your Divorce


If you are going into mediation, remember that every aspect of your financial life with your spouse has to be closely scrutinized. These will be weighed in terms of your lifestyle and your standards of living, both together and apart. You will need to itemize all household expenses, household contents, properties, bank accounts, retirement plans, vehicles, furniture, and other items of value. Make sure you take into account all childcare costs, including daycare, religious education, sports, and other after-school activities and lessons. Consider the cost of birthday parties attended, lunch money, school dues, clothing, and camp. If your children are young, adjust for expenses as they grow, and include those projections in your plan.

It’s best for you and your spouse to gather all of this information beforehand; doing this together can be useful. If you find yourselves disagreeing on something, set it aside. Agree to bring up all disputes only when you are with the mediator. If you can do this, then mediation might be the route for you. If you have problems with your spouse while gathering information, it may be a sign of bad times ahead.

If you and your spouse can agree on a fair settlement and iron out the details of your divorce without bitterness you will be extremely fortunate. Your children will be spared any emotional trauma and you can co-parent them together. This is an ideal situation, and if you are lucky enough to have a cooperating spouse you will emerge from your divorce as unscathed as possible.