I disagree–although we only hear of the tragic endings, orders of protection carry an authority that at least some, if not many, abusers grudgingly respect. I believe these orders have saved countless from horrible mistreatment that would otherwise have occurred.

However, it is also an unfortunate truth that because they are incredibly easy to obtain, orders of protection are misused, often against men. And this false practice clogs the system unnecessarily, preventing true victims from having their cases thoroughly examined and depleting victim-assistance resources.

In matrimonial practice, men are drastically more likely to be the spouse who has an order enforced against them at the beginning of a separation or divorce. When a man has had an order of protection issued against him, many automatically think that he must have done something horribly threatening or dangerous to his partner or family in order to have a judge feel compelled to issue an order.

Orders of protection can be “stay away” or “refrain from” in topic. “Refrain from” orders direct a person to behave in a certain way. For example, a refrain from order may direct a person not to threaten another person.

“Stay away” orders are weightier. They force the accused to leave the marital residence and stay away from his partner, home, workplace, and family lest they face prosecution. Notably, stay away orders can remove a person from his home even if his name is on the lease or deed.

There are between 2 and 3 million temporary restraining orders issued in the United States annually*. Despite their huge impact on a person’s emotional and financial well-being, in order to receive a temporary “stay away” order of protection, one needs only to allege that he or she “feels” threatened by their partner. There does not need to be any history of domestic violence whatsoever. There does not have to be an actual verbal threat of domestic violence either. Likewise, there does not need to be evidence of a major overt act, such as stalking or purchasing a weapon.

The modern extreme example of a ruling gone awry involved David Letterman. In 2005, a New Mexico judge granted a woman’s request for a temporary restraining order against Mr. Letterman, claiming that he wanted to marry her and employ her as a co-host. She also alleged that Mr. Letterman forced her to go bankrupt and talked in “code” to her via his show since 1994, causing her sleep deprivation and mental anguish. Thankfully, another judge ultimately quashed that order. However, the issuing judge stood by his ruling.

These orders are issued ex parte, which means the accused has no notice of the proceeding and does not have the opportunity to defend himself prior to its issuance. The burden of proof is the lowest legal standard available- by a preponderance of the evidence, which basically means that a judge has to believe that there is a 51% chance (“more likely than not”) that the allegations are true.

These orders are granted with barely any accountability as to the facts alleged, although they often include a “stay away” provision from minor children.

A temporary order of protection lasts until you have the opportunity for a full court hearing–which unfortunately does not necessarily get scheduled for up to six weeks. Due to clogged judicial systems, sometimes a full hearing can take months. Nor does the hearing necessarily occur at the first court date- adjournments from both sides trying to gather evidence for and against the order are common.

Notably, there is no right to discovery prior to the hearing. And once a hearing takes place, the burden of proof remains the same low standard.

When a false or exaggerated allegation results in a stay away order, many innocent men are suddenly tossed from their homes without any notice. Additionally, they face a sudden and profound financial stress– they must quickly set up another residence to provide for their needs as well as to prove to a court that they have adequate provisions for future child visitations. Many rapidly find themselves having to pay for two households to avoid being accused of shirking their responsibilities. Furthermore, these men often have lost access to necessary legal and personal papers necessary to function or defend themselves.

It is a well-known fact within the matrimonial legal community that many lawyers and their clients use these orders of protection to gain a strategic advantage over their spouse from which it is difficult to recover. And since no judge wants to be the one who “gets it wrong” leading to a tragic result, these orders are easily obtained.

What does the accuser have to gain in misusing orders of protection? A lot of things, including the following:

Judicial requests for exclusive use and occupancy of a marital residence are not often granted, and can take up to six months for a ruling. Therefore, unless an allegation of threat of immediate harm is claimed, couples are forced to live under the same roof unless they can come to some form of agreement. Orders of protection force the accused to immediately leave the residence.

It sets a precedent for custody. Joint custody is presumed. However, if a permanent order of protection is issued containing a finding of domestic abuse, that finding cannot later be disputed. As a result, in many jurisdictions, there is suddenly a rebuttable presumption that the victim should have legal custody. Also, the longer a parent’s access to a child is limited, the less likely that person will be deemed the primary caregiver. In fact, often the accused spouse’s children are now afraid of their father. Many upstanding citizens are shocked to find themselves automatically subject to supervised visitation with a social worker. This may confuse children, wishing to “please” their mother, and scar them unnecessarily for life.

It serves as a bargaining chip–many men are forced to agree to a permanent order of protection either of the same or more limited scope in return for something else such as lower spousal support or more access to children.

It drains resources. It gives the accuser the upper hand in property litigation and spousal support. The ousted spouse has no access to their financial documents, tax forms, personal property, safe deposits, deeds, etc. Although he can always request from his wife’s attorney or the court that these items be made available, the process often takes time, and requests for compliance are often ignored.

It emotionally puts men on the defense. They have no access to their belongings and family. There is the mad dash to find a new place, new clothes, furniture, etc. He is now known as the “bad guy.” And, if he acts too aggressively to refute the allegations, it may make him suddenly seem more menacing. The innocent who are accused are therefore thrown into overwhelming turmoil from which it is difficult to recover.

It creates a windfall for the attorneys. Once a stay away order is issued, the parties cannot communicate with each other. All communications must therefore be carried out via the parties’ lawyers. As a result, there is a strong incentive for the less ethically minded lawyer to protract a legal battle by encouraging this tactic.

There has been a small effort to address the problem, but none have made significant
efforts to remedy it. In New Jersey, in 2008, one trial judge found that the current standard of proof was unconstitutional in that it violated the defendant’s right to due process, and required the stricter “clear and convincing evidence standard.” However, the Appellate Division overturned the ruling, which was upheld by the New Jersey Supreme Court**.

In 2005, The Family Law News, California State Bar’s official publication in the field, noted
that the state issued on average 250,000 orders of protection annually. It acknowledged that the issuance of such orders were “routine” and conceded that they were misused by parties seeking to “jockey” for an advantage in custody matters and as retaliation***. Similarly, the Illinois Bar Journal called orders of protection “part of the gamesmanship of divorce****.”

A few recent studies examine this problem. One study found that 59% of allegations of domestic violence between couples involved in custody disputes could not be substantiated by the courts as true*****. A 2008 analysis of orders issued in one county in West Virginia concluded that 81% were unnecessary or false******. A 2010 review by Connecticut’s Judicial Department noted that ex parte orders increased over 25% from 2003 and 2004, and that nothing was being done to stop frivolous requests*******.

Given the foregoing, this problem is certainly one that our judicial system should address and remedy. Part of the reason I believe that it hasn’t is due to the fact that, unfortunately, those raising this legitimate concern tend to do so using vitriolic rhetoric. Websites focusing on men’s and father’s rights abound, and most use bombastic language that pretty much undermines their point that these men are peaceful and non-threatening. Even the notoriously controversial Phyllis Schlafly jumped into the discussion starting in 2007 complaining that liberal feminists are to blame for the misuse********.

There’s pretty much no doubting my feminist camp allegiance, and it was a personal challenge to review many anger-driven websites and commentaries blasting women and still write this article and acknowledge that there is a systemic-wide problem.

What none of these websites do, however, is offer any solutions. Here are some actions that may serve as a starting point:

Study the issue in a non-partisan manner to assess how prevalent the problem truly is.

Cease the nasty rhetoric. Pointing the blame at a particular political or social group is unhelpful. Both sides must acknowledge that there are many women truly in need of protection, and both must acknowledge that many abuse the system for strategic reasons.

If the jurisdiction allows for it, concerned men who anticipate that their partner or spouse plans to misuse the system should tape record conversations. Such recordings have saved many innocent persons from losing their homes and families.

In complaints, incorporate stronger language delineating the penalties for perjury. Enforce those penalties.

Treat temporary orders similar to criminal charges by requiring an “arraignment” relative to the charges within a 48 hour period. Treat a temporary order as analogous to an arrest, and require within that short time frame an offer of proof similar to the “reasonable suspicion” standard.

At that preliminary hearing, if an initial threshold is met, allow the accused to list necessary personal items (such as clothes) and valuables (such as identification and financial paperwork) at the residence and order the accuser coordinate their release within a specific timeframe. Impose sanctions for non-compliance or obstruction.

Award attorneys’ fees for motion practice to recoup personal property that is not timely released.

Because no judge likes to overrule herself, assign different judges to hear a temporary and permanent order of protection.

Require corroborating evidence for permanent stay away orders where there is no prior history of domestic violence and there is no allegation of actual physical harm.

Give the tort of “abuse of process” some teeth. This tort, rarely used or recognized, basically allows one party to sue another party who has abused a civil or criminal process, such as requesting an unfounded order of protection. Abuse is evident where someone has used the process based on ulterior motivations sounding in economic or social advantages. Unfortunately, some jurisdictions specifically state that the tort is not ripe until after a divorce is finalized, and after the harm is done. These jurisdictions should amend their rules to allow for joinder of this action with divorce proceedings.

Allow any finding of abuse of process to be relevant in custodial considerations where, by clear and convincing evidence, a party proves that 1) a parent willfully misused the protection process in order to gain a tactical advantage, and 2) the willful misuse is evidence that the parent is likely to be unwilling to worth with the other parent in their joint responsibilities*********.

*U.S. Dept. of Justice, Office of Justice Programs Bureau of Justice Statistics.
**Crespo v. Crespo, 989 A.2d 827, 201 N.J. 207 (2009).
***Robe and Ross, Extending The Impact Of Domestic Violence Protective Orders, Family Law News, Vol. 27, No. 4 (2005).
****Lerner, Sword or Shield: Combating Orders-of-Protection Abuse in Divorce, Illinois Bar Journal (Nov. 2007).
*****Johnston J et al. Allegations and substantiations of abuse in custody-disputing families. Family Court Review, Vol. 43, No. 2, 2005.
******Foster BP. Analyzing the cost and effectiveness of governmental policies. Cost Management Vol. 22, No. 3, 2008.
*******Domestic Violence in Connecticut, Judicial Branch, State of Connecticut (2010 Ed.).
********Schlafly, Feminists Abuse Domestic Violence Laws, www.townhall.com, Nov. 26, 2007.
*********See e.g., Campbell v. Campbell, 604 A.2d 33 (Me. 1992).

*Previously published on The Huffington Post.

The recent Pew Research Center study found that 39 percent of Americans say marriage is becoming obsolete. Like most states, New York does not recognize common law marriage and does not allow same sex marriage or civil unions. Therefore, individuals who cohabitate, even for decades, are legally considered strangers when it comes to property rights. It is therefore critical that unmarried couples who live together discuss financial expectations, personal obligations, and identify property rights should the relationship end.

Although they don’t like to admit it, States often legislate or fail to do so with morals in mind. And the law looks unfavorably on people who do not marry. By declining to examine the needs of a fast growing population that has opted out of the traditional marriage setting, New York fails to protect a significant portion of its population.

So without legislation or an active judiciary, how do unmarried cohabitants protect their rights? Ms. Lisa-Nicolle Grist is the Executive Director for the Alternatives to Marriage Project, Inc., a non-profit organization that advocates for individuals who are single, cannot marry, or cohabitate. (www.unmarried.org). The organization recommends partners have cohabitation agreements, as well as wills. These agreements may be beneficial if:

• You have significant assets or an anticipated inheritance.
• You own a business or property purchased before or during the cohabitation.
• There are children from a previous relationship.
• There is an income disparity.
• You or your partner has debts.
• One person is sacrificing economic power to raise children.
• To properly compensate a caregiver.
• To clarify personal expectations of the relationship.
• To clarify financial support during the relationship or upon its dissolution.
• To specify health insurance coverage.
• To determine the right to serve as a guardian in the event of incapacitation or to make medical decisions.
• You want clarification on a variety of issues such as how expenses are handled, infidelity, and separation and death provisions.

Let’s say a woman supports her boyfriend through business school. They cohabitate, but decline to marry for political reasons. After 10 years, they break-up. Over the years, his success ultimately earned him millions. In New York, a married woman has the laws of equitable distribution to protect her. The unmarried woman? Zip. Although laws are in place to protect any minor offspring of this relationship, the cohabiting woman has no property or financial rights without a written agreement. Yet the break-up rate for cohabiting couples is similar and even higher than divorce rates- 40% of will break-up within five years. One can only imagine the economic impact given the lack of safety netting involved.

The lesson? New York needs to acknowledge a trend that shows no sign of long-term reversal and examine the financial impact that occurs when a cohabiting couple break-ups in the same manner it examines the impact of divorce. New York then needs to enact appropriate legislation that protects both sides just as when a marriage ends. Until that time, cohabiting couples should contract, either by themselves or preferably with the assistance of an attorney, as to such as issues as financial obligations and property division upon the termination of the relationship.

*Previously published on The Huffington Post.

Deborah Moskovitch is a divorce consultant and educator, and author of The Smart Divorce: Proven Strategies and Valuable Advice from 100 Top Divorce Lawyers, Financial Advisers, Counselors and Other Experts. Deborah has become an opinion leader in the media and has shared her insights and research on television and radio to explain that divorce can be managed in smarter ways. To learn more visit thesmartdivorce.com.

Thinking about divorce but haven’t made up your mind one way or another? If so this is the time to start preparing yourself for a divorce. Don’t wait until you have decided to divorce to take care of what needs taken care of if you should divorce. When going through a divorce it stays to be one step ahead of even yourself.

Below is a list of things you need to do NOW if you are considering divorce.

Make a divorce checklist

The divorce checklist should contain all the details such as credit card accounts, stocks, bonds and automobiles which you would like to discuss with your husband.  Copies of bank statements, investment account statements. Copies of anything that is proof of any marital asset that will be divided should you decide to divorce. Divorce is an important decision, where one should prevent any sort of unpleasant surprises.

Gather important documents

The outcome of your divorce will depend on the presence of important documents. You should have all the vital documents in hand, since even your husband maybe planning for a divorce. It would be wise to keep the documents in a safe place, especially if your husband is sketchy in his practices. You should avoid letting anyone know the whereabouts of the documents, since they may try to destroy the evidence.

While gathering the documents it is essential that you gather all  documents possible, since you might not even know which documents are necessary. Your attorney would be the most suited person who would evaluate as to which documents are required and which documents are not. Keeping the correct documents in hand, would prevent you from wasting time.

Children custody

When you are thinking about divorce and you have children you would also have to think rationally about your children as well. If your children are below 18 years of age, there are higher chances that the children would be in your custody and your guidance. If your children are above 18 years of age, they would be given the right to decide as to where and with whom they would like to stay.

Gather evidence

You must try and accumulate as much of evidence and as fast as possible if you want a positive result for your case. You can have hope that it would be a positive result when you have valid evidence. More over when you collect evidence even your attorney would be in a better state to fight the case.

While collecting evidence you must keep in mind that law sets exact and strict standards as what would be considered as evidence and the quality of evidence obtained. Your attorney would be helpful in assisting you in collecting the right sort of evidence, which can range from infidelity to even hiding assets. There would also be an appropriate time to present the evidence in court or even use it in negotiations with your husband.

When you prepare well for a divorce you can alleviate mental stress and confusion. You would have higher chances of success when you are better prepared for divorce.

I urge you to study the divorce laws of your state. To learn what the divorce process is like in your state and to arm yourself with the knowledge needed to protect yourself during the legal divorce process.

Below is a brief outline of what the divorce process looks like. The steps you will take during the process will be dictated by your state’s divorce laws and the court within which you file for a divorce. You can get an idea though of what to expect during the divorce process from these steps.

File for divorce: You will have to complete this process with the help of your divorce attorney. If you find it a better option to file for divorce yourself, you can it do so by going to the courthouse. If you use an attorney he/she will take care of this step. The only thing required of you will be any documents your attorney will need to get the process started.

Temporary hearing: Once the divorce petition is filed the court will set a date for a hearing that will deal with any temporary orders to be followed until there is a final order of divorce.

During the temporary hearing a temporary agreement would be made to set things in proper order. During the temporary hearing issues in regard to division of pension benefits, spousal support, child custody, marital  debts, visitation and property distribution are settled.

Mediation for the couple: In some states mediation is required if a divorcing couple is unable to come to an agreement. During mediation things or issues are settled on equitable distribution basis. You would have to make a list of all the items, which you feel should be divided. The article, Ten Tips to Ease Your Divorce: Mediate, Don’t Litigate will explain the process of mediation

Pre-trial for the couple: During the process of pre-trial, you have to make a list of witnesses and evidence which would prove things in your favor should you go to divorce court. During this process it would be determined if your case would be moving further for the trial session. If you do go to divorce court below is a list of “thing” you can expect to happen.

• Discovery: “Discovery” is a legal mechanism designed for gathering information about either party to the divorce.There are five steps to the discovery process. Although states and their laws may vary during the discovery process, the five steps below are common and will probably become a part of your divorce.

1. Disclosures: Every state has rules of civil procedure and the way disclosure is conducted is determined by those rules. Attorneys for both parties request certain items from the other party. The list of items is sent to the other side and they must respond within thirty days.
2. Interrogatories: This is a list of questions that the attorneys send to the opposing side. Most states set limits on how many questions and the response time is thirty days.
3. Admissions of Fact: This is a written list of facts that is directed at the other party to the divorce. The party receiving the list of facts is asked to either admit to or deny each listed fact.
4. Request for Production: This is a legal mechanism used to obtain documents such as bank statements, statements of income or any documents the attorney feels will benefit his client. The party receiving a request for production is supposed to respond with the documents within thirty days. This part of the process can become a major obstacle to a swift divorce. It seems to be human nature to not want to turn over personal information and many times delay tactics are used at this part of the process.
5. Depositions: During depositions attorneys will take sworn testimony from the opposing party and any witnesses involved. Anything said during a deposition can be used in court should an agreement not be met and you end up in divorce court.

Divorce Court: During this process the case would be presented in the court, witnesses would be called and questioned. During trial evidence would be taken into consideration and the case would be decided by the judge.

The idea of going to divorce court is frightening. It is something you should avoid at all expense. Not because the experience is bad BUT once you end up in divorce court you give a judge the right to decide for you how marital assets will be divided, how child custody will be handled, how much child support will be required…all things most of us want desperately to maintain control over.

No one wants anyone telling them how often they can see their children or whether their home will be sold. I urge you to participate in the mediation process openly and honestly and that your expectations not be too high. If you are angry with your soon to be ex you need to remember that we live in the days of “no-fault” divorce laws. You can’t use the courts to punish or make him pay. Attempting to do so will only mean a lose/lose situation for you and him and more than likely a negative financial impact for you.

The great American philosopher, Yogi Berra, once said, “Be careful, you don’t want to make the wrong mistake.”

Nowhere is that more true than in the area of divorce advice.

Yogi also said, “90% of this game is half mental.” Also true if you are contemplating, or involved in, a divorce.

Almost always, the mindset of the people involved in the divorce is what will eventually dictate the length, complexity and difficulty of the action.

If you want to end your marriage as cheaply and as painlessly as possible, do yourself a favor and heed well this advice.

1. DO NOT THINK OF DIVORCE AS A WAR!

You are not involved in combat, you are engaged in negotiation. In negotiation you gain more by being reasonable and thoughtful. If you consider the other side’s positions carefully and respond in a measured manner you will find that you achieve much more than by being contentious.

2. DO NOT DEMONIZE YOUR SPOUSE!

True you are no longer getting along as you once did, but that does not mean that your wife or husband of all these years is now “that bitch” or “that bastard”. Such a mindset does nothing to advance your goal of ending your marriage with the least heartache or expense possible. Really, try not to think that way.

3. DO NOT FAIL TO MAKE CONCESSIONS!

Some people think they are going to get everything they want and that they are not going to give an inch on any issue, or concede any property. Life doesn’t work that way, nor should it. You are involved in a negotiation. You must be mentally prepared to give some to get some. In negotiation a party who gives easily will often find that they get more in return. We see it happen all the time.

4. DO NOT THINK YOU ARE ABOVE THE GUIDELINES!

The State of California has guidelines concerning the amount of support an earner will have to pay for the support of children. The Family Code also sets forth all the elements a judge must consider before ordering spousal support. The child support is a function of income. Spousal support requires the careful weighing of 14 various elements. You will be well served to get it in your head that these considerations are there for good reason and they apply to you. I get this all the time in mediation. The chief earner is somehow under the impression that there is some sort of giant “loophole” through which they can avoid paying any support to their former spouse. There is room to negotiate, but do not imagine that somehow these guidelines are for everybody else and not for you.

5. DO NOT THINK THAT “WORDS DON’T COUNT”!

It is amazing how people can say truly hurtful things to each other and not consider the consequences. Bad words delivered in a way calculated to cause pain are a form of abuse. You may think that you can say anything you want to each other with impunity, but the fact is that you will always pay for inflicting pain. What is more, the person delivering such abuse does damage to themselves

and diminishes their own humanity. But that is the subject of another article. Trust me; hold your tongue lashing and you will get through the process with a lot less pain.

6. DO NOT FAIL TO GET THE HELP YOU NEED!

With the possible exceptions of death or serious illness, there is no more stressful time in life than going through a divorce. People tend to do all the wrong things at this time. Internalize their feelings. Self-medicate. Withdraw from life in general. Alienate their friends. It all happens during a divorce. We at Liaise do not practice therapy, but we are great believers in the benefits of therapy. Most health insurance policies provide for some mental health counseling. Get some. It is usually pretty calming to sit with a professional who has been there before and get some sound advice on how to handle the feelings and sorrows you may be facing.

7. DO NOT THINK YOU WILL GET A “FREE RIDE”!

It is distressing the number of times I have assisted couples in a dissolution where the hardest part was shaking one side from the misconception that because they had been married for over 10 years their former spouse was some kind of indentured

servant who had to take care of them until death! That is not the case.

A Judgment of Dissolution in California has the following words printed right on it:

NOTICE: It is the goal of this state that each party will make reasonable good faith efforts to become self supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal or partner support.

This is an EXPRESS public policy and it means just what it says. California wants everyone to stand on their own two feet. This means that if you need training to re-enter the work force, have some support earmarked to get training and start doing what you can to get employed. It is good for you and it is your duty under the law. Of course there are sad situations where one party cannot reasonably become employed, but that is a rare situation. The fact is that happiness and self-satisfaction are often the by-products of good work and one way to be fully engaged in life is to be purposely striving towards a worthy goal.

8. DO NOT LET YOURSELF THINK THAT THINGS WONT GET BETTER!

Absolutely this is one of the worst periods of your life. Without a doubt things look as gloomy and foreboding as you could imagine. As bad as things may be, you have to believe that your life is going to get better! Just as in any disaster, a common trait amongst those that survive divorce well is a Positive Mental Attitude. You need to adopt such an attitude and there is good reason to do so. We at Liaise see it time after time. A spouse going through the divorce process is initially, and understandably, miserable. Those who strive to keep a PMA soon realize that previously they had been living in a toxic environment and they are now taking purposeful steps to move forward in their lives. Upward advancement is enlightening and it seeps into your psyche, improving your outlook and brightening your future. Keep your head up and your feet moving forward. Things do get better.

9. DO NOT LITIGATE! BE SMART, CHOOSE MEDIATION.

Lastly, and most importantly, don’t make the mistake of suing your spouse to end your marriage! If you think about it, the very concept is absurd. If you were

ending, for example, a 12 year business partnership, 99 times out of 100, all you would have to do is sit down with your partner – divide up the assets – divide up the liabilities – shake hands and part ways. Ending a marriage can be done the same way. It is a bit more complicated because there can be issues of child and spousal support, but the important point is that it doesn’t have to be a battle! The expert mediators at Liaise can help you and your spouse navigate through the complexities and arrive at an agreement that is the negotiated blueprint for ending your marriage. That agreement is presented to the Court and becomes the Judgment ending your marriage. You never have to appear in Court. You save 10s of thousands of dollars. You don’t ruin your family by engaging in a huge fight and you are better able to get on with your life.

So like Yogi Berra says, don’t make the wrong mistake and don’t forget that the mental part is half the battle.

Do yourself, your family, and your financial well being a favor and choose Liaise Mediated Solutions, LLC to help you navigate the treacherous waters of managing the expensive and painful situations of dissolution.

David D. Stein has been an attorney for over 20 years and is the founder of Liaise® Mediated Solutions. He is a trained mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

Divorce is an ongoing reality in our society. No longer the exception, at least one in every two marriages will end through a divorce. And yet, despite this fact, we have been slow to adapt procedures that allow a marriage to end civilly, creatively, fairly and in these tough economic times, with the minimum of expense. For the most part, divorce is still framed as an adversarial battle that is characterized by accusations, blame, unproductive argument, high costs, and weak solutions that ignore the best interests of the children.

This failure to adapt reminds one of the silver backed gorillas in the forests of Africa. In the days prior to the arrival of the gun, standing on your back legs and beating your chest was an effective strategy to ward off a threat. Now, it makes an easy target for a hunter with a gun.

And so it is with divorce. There are plenty of attorneys waiting for you to show up angry, indignant, hurt, and vengeful. They are happy to be your silver backed gorilla, standing up to make futile motions to court, beating their chest, but only as long as there is money in the estate. The number of divorce cases that start out with an attorney, but end without is an embarrassment. The number one reason-there was no more money!

It doesn’t have to be this way.  In truth, we have already evolved better ways to end a marriage, ways that are kinder, gentler, and when there are children involved, to deal with the reality that what is actually taking place is a reorganization of the family, rather than an ending.

And that way is mediation. Instead of the parties setting themselves up for a fight, more and more are turning to mediation. In mediation, a professional expert supports a conversation that is intended to facilitate what needs to happen-make decisions based on the family needs that are better than the decision that a disinterested third party aka a judge would make.

Divorcing couples are finding that this approach makes good common sense, and is far more conducive to finding the best possible, most creative and certainly fairest solution to their family reorganization, at a fraction of the cost. They are discovering that they don’t have to be held hostage by a process that only makes sense to the attorney’s representing them.

And it’s about time. The average mediation costs $4,000. By contrast a divorce that is negotiated with adversarial attorney’s involved costs $26,000, and when it goes to trial the cost is $78,000. For most American families that is unaffordable.

So the first adaptation is to mediate, not litigate. But what other adaptive strategies are available that you as the divorcing couple can do to make the mediation process itself, more effective? What follows is a list of ten ideas that are worth considering as you seek to have the most positive divorce experience possible:

1. Seek to collaborate, not to fight

The research from the field of negotiation is clear. We get better deals when we seek to work jointly at the challenge on hand, both in regard to those issues where the best interests of the children are at stake, but also when it’s all about the money.

2. Keep your eye on the ball

As Stephen Covey says, start with the end in mind. The purpose of the process is not to exact revenge, but rather to work out a fair solution that makes sense for your family. The end product is your marital settlement agreement. It documents your plan of action for your ongoing care of your children, the division of your estate, and also addresses whether and to what extent there will be any spousal support.  It is this document that allows the court to essentially rubber stamp your process.

3. Prepare!

Getting a divorce takes an effort. You will have homework to do!  Both parties must make full disclosure of all assets and liabilities. Only you have the information. The sooner you share it the quicker the process will be.

4. Manage your Emotions Wisely!

Not only is it important to have your financial information organized, but also that you take time to manage your feelings. Inevitably, divorces surface strong emotions, like anger, disappointment, shame, fear and jealousy to name a few. There will be opportunities to share how you feel during the mediation, in productive manner. If you can dissipate your negative emotional energy before the meetings it will help.

5. Listen To Understand

As hard as it may be to listen attentively to what your partner is saying, it will pay dividends. You will have the benefit of understanding where they are coming from and what is important to them. Too often we can only hear the voices in our own head and tune the other out.  Mediation works best when both parties communicate effectively, and listening is a vital part of that.

6. Focus on your needs

In conflict it is natural to identify a solution that we feel is fair and to demand its application. The danger with this approach is that it fosters defensiveness and conflict escalation. The mediation process works best when we articulate and focus on our needs, and then together search for the most creative solution with the resources available.

7. Explore Standards of Fairness

The law is one standard. If you don’t work things out and still want to divorce, a judge will apply the law to the facts of your case. How you feel or what your personal standards of fairness look like, will not come into play. However, in mediation, you can establish your own criteria for fairness, and use those family inspired yardsticks to address the more tricky issues that leave you feeling hopeless.

8. Consider the need to apologize

When your kids throws a ball through your neighbors window you don’t tell them to run inside and hide. You send them over to apologize and to make reparations. When our actions cause pain to another, the right thing to do is to say you are sorry. When we are conciliatory with one another in this manner, we set the stage for reconciliation, a vital outcome for the ongoing, but reorganized family.

9. Consider Forgiveness

Forgiveness is something we do for ourselves. It empowers us to move on with our lives without challenging the past to be anything other than the way it was. To forgive does not mean we condone, but it does signal an intention to let go of the pain.

10. Be Creative

As humans facing a challenge, we are limited by our own creativity. Like the poor silver back gorilla’s that needed to find a new strategy, your challenge is to think outside the box and find a unique solution that addresses the reality of a reorganized family.

Mediation is a family friendly process that allows you to focus on what you need to do to make your divorce a reality. It represents a new way of doing things. A way that most agree is good common sense. Following the suggestions contained in this brief article will help you get through your divorce with the least pain possible and with the greatest potential for marital settlement agreement that is fair to both.

John Ford practiced family and labor law in South Africa and Namibia before moving to the United States in 1996. He mediates divorces with Liaise Divorce Solutions in downtown San Francisco. John has written extensively on the subject of conflict resolution and mediation and is the editor of www.mediate.com.  He can be reached at  john@liaisesolutions.com

Avoid huge legal bills and jockeying lawyers while protecting your kids — turn to Divorce Without Court for help. Encouraging and straightforward, the book guides you through a negotiated divorce, using divorce mediation.

I don’t’ remember when or how I found The Bunny Cage blog, but upon seeing the provocative photography of this self-styled Cindy Sherman of Wyoming, I started following Sara LeeAnn Banevedes. It was hard to believe someone so hip was living in a small town writing such interesting stories and taking such revealing photos of herself.

She was a sexy and obviously talented mom with a young daughter who lived with a cowboy husband who seemed to be ignoring her. I made “friends” with her on Facebook so I could follow her more closely.

This displaced Californian was a cancer survivor who, in her own words, “moved to Wyoming (with my now ex-husband) in order that my daughter might have a slower-paced life in the wide open spaces, near her paternal grandparents, where her daddy could prosper in business so her mommy could afford to stay home and care for every day.”

From reading her blog, seeing her Facebook posts and looking at her photos it became obvious that something was wrong in her world. Never having talked to her, all I had to go on was the internet evidence but was not surprised when she revealed she was getting a divorce.

Today she dropped a cyber bomb that surprised all her friends. She confessed a secret that as a divorce attorney I am all too familiar with: She admitted that almost a year ago she foolishly signed papers given to her by her husband’s divorce attorney, giving her husband sole custody of her daughter. She admitted, “I only see her four days a month. I see her every other weekend, and that’s all.”

When I read those words my heart dropped to my stomach. This child is the light of her mother’s life. All the stories, photos and Facebook posts about this miraculous child and the obvious bond between mother and child had come to this. Some hired gun had helped the client trick the mother into signing over custody so that it would be very difficult for the mother to come back to court later to ask for custody.

This is the danger of our adversarial system. When one side has money to hire the biggest shark in town and the other side doesn’t, the poor parent is going to get screwed.

I kept reading the story and sure enough, it was exactly what I had thought. Her own words tell the tale:

I’ve been living in a state of surrealist shock — like an acid trip, minus the euphoria, all dancing clowns and skeletons in the closet — since the day my ex-husband told me he ‘changed his mind’ and we won’t be sharing custody of our only child after all.

Months before John and I sat down with a bottle of wine and agreed divorce was the best option. We weren’t in love. In fact, he pretty much hated my free spirited, liberal attitude, my wanderlust, my tastes in music and art, the way I laugh with my head thrown back and cry when I watch the news. And I pretty much hated his conservatism, the way his cowboy boots sounded on my hardwood floor, his obsession with his pick-up truck, the way he wanted a bacon sandwich more than sex, and how he watched CNN from the breakfast table.

We had become ill-suited for each other, had accepted it, and were ready to move on. But, I’d been a cancer-survivor, stay-at-home mom on hiatus from any educational pursuits or work for 5 years, completely isolated out here in the middle nowhere with no family support and one friend. All the sudden I had to get myself a job, a place to live and an identity outside of him.

And I did. FAST. It took me six months to get myself together. He promised as soon as I secured a living environment that was comparable to his — in a safe neighborhood where Beau had her own space — that we would share custody of her week-to-week. He told me to sign the custody agreement his lawyer drew up (because it was just for financial purposes that he was named the sole custodian — that way he would be responsible for the legal fees of the divorce and have to carry health insurance for Beau, etc.)

I did everything he asked. Then, I waited. And waited. And waited. And essentially, he told me, “Fake, just kidding. We’re going to go ahead and follow that bogus legal agreement you signed, sucker. You get every other weekend and alternating holidays until she’s 18.”

Let’s be real. I think he and his family were hoping I would pack my shit and go back home to California, or slit my wrists. Which, with no familial support, one friend, no money, lovely genetic makeup, gypsy spirit and history for dramatic exists weren’t all that far fetched. N’cest pas?”

This is just another travesty of justice perpetrated by a shark divorce lawyer who saw the opportunity to get an advantage over the “adversary” instead of trying to help a young couple set up a fair parenting plan that took the child’s best interest into consideration. This little girl has been taken care of by her mom for her entire life.

To disrupt a child’s sense of security by severely limiting contact with her primary physical custodian is monstrous. It is despicable that one parent would induce a parent to sign away custody with the promise that they would get 50/50 custody later and then snake out of the deal because their lawyer had conveniently omitted that part of the agreement in the court order. And this is a common situation.

Until couples protect their co-parenting relationship by avoiding these kinds of adversarial divorce attorneys, more children’s lives will be ruined, more couples will end up broke and angry. It is time everyone got on the Peaceful Divorce bandwagon. By working together and keeping the focus on the child’s best interest, couples can spend their money on their child and not their divorce attorney’s child. It is high time we put these kinds of legal dinosaurs out to pasture and embraced a more humane attitude and procedures for divorcing couples.

Author Bio:

Belinda Etezad Rachman, Esq. has been a family law attorney in Southern California since graduating from the University of San Diego School of Law in 1996. She also holds a Masters in Special Education from New York University, specializing in teaching severely emotionally disturbed children. She taught in New York City and Southern California before becoming a lawyer. After eight years of traditional legal experience Ms. Rachman has done nothing but divorce mediation for the past 6 years with 100% success rate with over 250 couples. For more information to see if divorce mediation is an option in your case go to http://www.divorce-inaday.com

Question

Dear Shelley:

I am really struggling.  I was married for almost ten years and have two children.   My husband and I have been to court three times already.  At the last hearing, the judge asked both attorneys if all issues were resolved and both said yes – but my ex and his attorney have not completed the necessary paperwork and are totally unresponsive.

My attorney wants another hearing, but I’m praying for another way out. I have spent over $50K and am flat broke. His child support was reduced by 42% and I am responsible for the mortgage.  I was a stay-at-home mom and had to find a job in the 2008 economy.  So I had to take what I could get. What options do I have at this point?

MaryAnn

Answer:

Dear MaryAnn,

I cannot give you legal advice as I am not an attorney and matrimonial laws change from state to state, province to province.

Options?  You either resolve to move forward by learning how to let go of the past or stay stuck where you are. I know it sounds simple but it really does come down to that.  What do you want your life to look like in one year and what will it take you to get there?  Concentrate on  what is under your control because we need to let go of the things that we cannot control and for the most part, we can only control how we choose to handle a situation/challenge.  Remember the serenity prayer?  If not, look it up on line and use it as your blueprint.

Start making small steps toward your goal. In addition, take good care of yourself by exercising and perhaps taking up yoga to reduce the effects of stress on your mind and body.  Make that commitment to yourself because you need all the resources you can get your hands on now.

There are always different ways of doing things and options to solving a problem.  If what you have been doing is not serving you then try doing things differently.  Reduce the occurrences of thing that upset you and increase the things that make you feel good.

Hope this helps.

Shelley

Shelley Stile is an ACC certified Divorce Recovery Life Coach and author who guides her clients to let go the pain of their divorce and move on to create new and vibrant lives after divorce. Shelley has been through her own divorce so she knows first-hand about the journey of divorce recovery. Receive her free, powerful e-book, The 10 Secrets to Coping with Divorce’, and her monthly ‘Take Back Your Life After Divorce’ Newsletter by going to: http://www.freedivorcesupport.com.

Are no-fault divorce laws in the best financial interest of women? Not according to the study below.

In the late 1980s, several states set up task forces to study gender bias in the courts. For example, in Colorado, one section of the task force was charged with the area of divorce. It studied cases taken directly from the court files. The parameters were that

1. The marriage have lasted 12 years or longer,
2. The case be decided by a judge as opposed to being settled out of court, and
3. There was a minimum of $10,000 in positive net worth.

There were 28 cases in the year previous to the study that matched the above parameters. Out of 28 cases, the average length of marriage was 20.5 years. At the time of divorce, the average age of the wife was 44, the husband, 45. Eleven of the 28 families had net assets of less than $50,000 at the time of divorce and ten had net assets of $100,000 or more.

At the time of the court order, the wife’s average net worth was slightly greater than the husband’s, because she was usually given less of the marital debt. Within four years of the divorce, however, the wife’s projected net worth declined by 25 percent while the husband’s nearly doubled. Within eight years of the divorce, the wife will have a negative net worth while the husband’s projected net worth is approximately $200,000.

In gathering data, besides looking at the court files, the Colorado task force interviewed many divorced men and women. One woman told her story about the alimony award after 38 years of marriage during which she was not employed. The judge ordered her husband to pay her $300 per month for two years. He awarded the house, appraised at $160,000, to the wife, and all the other assets, including a retirement fund, to the husband, saying, “Mother has been out of the work force, and if we gave her all that money she wouldn’t know how to handle it.”

Another woman told the Colorado task force that she had been awarded a tractor as part of the property settlement but her ex-husband refused to deliver it. She had tried for four years to get the original order enforced, without success. One district judge gave her former husband permission to continue using the tractor. When her lawyer objected, the judge asked her what she was going to do with the tractor.

The Washington State Task Force on Gender and Justice in the Courts found that only 10% of all wives being divorced were awarded alimony and the average amount was $432 per month for an average length of 2.6 years. The national average as of spring 1986 had 15 percent of wives receiving an average of $329 per month.

On Sunday Governor Patterson signed into law, no-fault divorce laws in New York State. In a statement after signing the new bill Paterson said that fault divorce laws, “harmed the interests of those persons — too often women — who did not have sufficient financial wherewithal to protect their legal rights.”

I know that over twenty years have passed since the above study but not much has changed as far as the long-term financial impact of divorce on women. One of the few states where a woman did have a fighting chance in divorce court was New York State. Thanks to new no-fault divorce laws, those women can now join the others of us who have been victimized by no-fault divorce laws.

When will legislators learn that it isn’t the law that is the problem, it is the system one has to deal with after filing for divorce. Too bad laws can’t be passed to monitor how civil and respectful we are to each other throughout the divorce process.