Family Law Mediation

by R. Keith Spencer

Families going through a divorce or separation frequently must devise co-parenting plans to ensure continuity of care for children of multiple households. Simple matters, like consistent bedtimes and nighttime routines, are very important for children struggling to cope with a fractured household. However, it is often difficult for parents to set aside differences long enough to discuss and resolve such issues while struggling themselves to adapt to their new roles as single parents. Mediation allows parents the opportunity to craft child care plans tailored to their child’s specific needs and schedules rather than forcing the court to impose a generic and impersonal set of guidelines.

Mediation is a dispute resolution process that utilizes an impartial mediator specifically trained to work with cases involving children. Frequently, the parents are placed in separate rooms while the mediator shuttles back and forth between the two. Thus, parties and their advisors do not have to engage in face-to-face confrontations during the mediation process. Issues of child support, visitation, discipline, bedtimes, supervision, residency restrictions, extracurricular activities, travel and education can be addressed based upon the particular facts and circumstances surrounding the individual family. Recognizing that parents can make better decisions for their kids than can judges, mediation places the parents in charge of these life-changing decisions.

Family attorneys may refer their clients to a number of programs that prepare parents for their new roles as single parents and provide them with vital tools to promote effective co-parenting. Childreninthemiddle.com, theparentingcenter.org and texasafcc.org provide services and links to many organizations specializing in helping parents adapt to the co-parenting process. Many attorneys use these services to assist in the preparation of child care proposals, which will form the first proposals at mediation sessions.

Most family courts require the involved parties to attempt mediation prior to trial. Mediators vary widely in cost and experience. Local Dispute Resolution Centers provide a low-cost mediation experience. However, the mediators may or may not be attorneys and may or may not be familiar with family court. Retired judges frequently serve as mediators, utilizing their special knowledge and experience to assist parents. Such mediators are generally more expensive and may cost each party in excess of $500 per mediation session. It is important to note that mediators do not render decisions or rulings. Rather, they simply assist the parties in crafting a workable agreement. It is up to the parties to reach that agreement. Failure to do so simply means that the court will have to make the important decisions instead of the parties.

What is said in mediation stays in mediation. Settlement conferences and mediation sessions are privileged, and statements made or offers discussed in mediation cannot be raised at trial by either party. This promotes a free exchange of ideas without the necessity of posturing to protect one’s position at trial.

It is important to note that most family law cases ultimately settle before trial. Thus, employing mediation early in the process can save the parties the significant money and heartache that accompany protracted litigation.

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The Importance of and Accurate Inventory and Appraisement

One of the most important aspects in a divorce case is the preparation and filing of an accurate sworn inventory and appraisement of community and separate assets. The inventory and appraisement, otherwise known as an “I&A,” is a document which lists any and all of the assets owned by the community as well as the separate assets of each spouse. and will show in detail the approximate value of both the petitioner’s and the respondent’s respective assets. The I&A acts as a blueprint to determine a fair and equitable split of the community assets to both parties. While an I&A does not prevent the concealment of marital assets, exchanging I&A forms between the parties can go a long way in preventing concealment and can enlighten each party to the assets held by the marital community. In many cases, one spouse is delegated the task of managing finances on a daily basis while another is tasked with managing retirement benefits and the acquisition of property. An I&A can enlighten each spouse to the state of the community estate in a non-confrontational and open manner, cutting down on the need for extensive, thorough, and costly litigation.

While exchanging sworn I&A’s provides no guarantee to the extent of discovery and litigation, the I&A can provide an idea as to whether the parties are even on the same page with each other as to what assets are to be considered community property and what assets are to be considered separate property. If the parties are willing to negotiate and produce similar I&A forms, litigation can potentially be much less extensive and much less costly with regard to the division of the community property for both parties involved.

Community property is defined as property, other than separate property, acquired by either spouse during marriage. Clients are often caught off guard when we begin to speak about the assets of both the community and the separate property assets of each party, especially when divorcing after many years of marriage. Clients make the mistake of thinking the only assets to divide upon divorce are bank accounts, cars, and the martial home. Clients can also make the mistake of believing that certain assets are community assets when in fact the assets are actually separate property.

Because clients can overlook both community and separate assets it is important to spend time on the inventory and appraisement and present as much detail about when and how property was acquired. An inventory and appraisement does not merely act as a guide to determining what the total value of the community estate is, but also provides direction which can help guide each party locate and present what separate and community assets he or she believes exist and the approximate value of the assets. How and when property was purchased can affect the categorization of property as separate or community and the preparation of an accurate inventory and appraisement can be critical to a fair and equal division of community property.