Who cares for the children?

Whenever parties separate and there are children, then a decision has to be made as to whom the children are going to live with.  Do they stay mainly with one parent and have contact with the other or is there some sort of shared parenting arrangement whereby, as far as possible, the children spend equal time with both parents?  Is this a good idea?  Is it a good idea for the parents but not for the children?  How do families best manage the care of their children?  Who cares for the children? 2 children at the windowVery often both parents want to be fully involved with their children’s lives but face the practical difficulty that really the children can only live with one parent which means contact with the other can often be intermittent, alternate weekends and a few days during the week.  Is this enough to maintain proper contact and a good relationship with your child or children? Lots of fathers fear losing their children if they separate from the child’s mother.  But equally mothers too fear losing their children in some way.  Even if the children live mainly with the mother, there will be weekends when they will be with their father who may have a new partner and possibly even a new family.  Separation can cause pain all round. There has been a lobby suggesting that if the time the children spent with both parents was equal this would necessarily be the best in all cases.  This highlights the fact that this presumption actually risks subordinating a child’s best interest to the parents’ expectations of ‘equal’ rights.  It can be hard when parents separate to decide what is best for the children as opposed to what is the best for them, the parents.  Do children really want to spend half the time with one parent and half the time with the other with all the practical difficulties involved in changing from one house to another? Sometimes this can be the best arrangement, particularly if the parents live near to each other and get on well.  But if the parents do not get on well and cannot see each other without arguing then going constantly backwards and forwards creates a lot of tension. Obviously it is best if that tension can be avoided or dissipated altogether as both parents and children learn to move on and deal with their new situation. All that can be said really is that there should be no hard and fast ‘rule’.  It is not the case the children automatically stay with their mother:  it is the case that both mums and dads need to look at what is actually best for their children and most of all try and have a good relationship with each other, even though you have separated, to ensure that the time the children spend with both of you is good. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
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When is a matrimonial asset not a matrimonial asset?

little-boy-and-dog-300x216A typical matrimonial asset would be the family home; bought together, lived in together and when the parties separate it needs to be dealt with in a way that ensures both have somewhere to live.  The property is either sold or transferred to one or other of the parties.  This is on a relatively equal basis according to their means so that they both end up living in relatively similar accommodation. A “non-matrimonial” asset would be for example, an inheritance, something acquired by one party either prior to the marriage or during, but in some way kept separate.  This could be a family business or an inheritance received by one of the parties and perhaps kept separately or used to purchase another property or asset.  When the parties separate what should happen to these assets; do they belong to both of them equally or should they be treated differently?  I am sure the person that received the inheritance would argue that it’s “theirs” and not to be dealt with jointly.  After all if the asset was acquired after the parties were divorced then it would only belong to that person. The Courts have varied their approach to these non-matrimonial assets, whether it be an inheritance or other assets received post separation or brought to the marriage and kept separate.  Having established that those assets that the parties generated during the marriage otherwise than by external donation i.e. matrimonial property, are to be shared equally, the Courts are now saying that this also applies, this sharing principal, to all the parties’ property, however acquired.  But, “to the extent that their property is non-matrimonial, there is likely to be a better reason for departure from equality” (Charman v Charman [2007] 1 FLR 1246) so, the existence of non-matrimonial property can justify departure from equality, but not necessarily if this would result in unfairness to one party or the other. So there we have it – non-matrimonial property is to be treated as matrimonial property unless it would be unfair to either party. The situation remains very unclear! It means that if one party for instance acquires an inheritance shortly before they separate both would argue that it would be unfair to do one or the other, the recipient would feel it unfair to be divided equally, the other party would argue that it would be unfair for it not to be taken into account.  As always you would need to look at the particular facts of a particular case to come to any sensible conclusion.  This is why it is often very difficult to give categorical advice as to the likely outcome in divorce proceedings.  The financial aspects of separation are best agreed rather than argued through the Courts which can be an expensive gamble. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
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How do you negotiate with “difficult” people?

office-interiorI suspect no one considers themselves to be “difficult” so we are perhaps talking about people with strong opinions which they consider correct.  I would always advocate attempting negotiation or mediation rather than simply assuming an adversarial approach and heading to Court.  It always helps as a first step to actually take a step back and get some perspective on the situation.  It is easy to be so convinced of your own position that you do not look at the alternatives which might have some unforeseen benefits. As we all know, under stress even reasonable people can become angry, intractable and entrenched in their view.  Anger and hostility may also hide fear and mistrust, confusion and distress.  You need to deal with not only that person’s behaviour but your reaction to it which can easily perpetuate the very behaviour you would like to stop.  If you react angrily, negotiation may become impossible. The aim is to move from face-to-face confrontation to side-by-side problem solving - it is always worth a try.  Working together to seek solutions rather than having an angry confrontation which goes nowhere. “Speak when you are angry and you will make the best speech you will ever regret”. Ambrose Bierce Sometimes people may try to wind you up - if you succumb to anger you stop thinking clearly and by reacting you become part of the problem.  It is important not to react to provocation or try to provoke a reaction! Sometimes the most affective negotiation is accomplished by saying nothing. Sometimes emotional reactions indicate a need for recognition of pain or distress or hurt.  We all have a deep need for recognition, and satisfying that need can help create a climate for agreement.  Acknowledging the other’s point of view does not mean that you necessary agree with it.  It means that you accept it as one valid point of view amongst others, but it sends a conciliatory message.  Agree wherever you can.  It is possible to agree without conceding. Saying “Yes, you have a point there” or “Yes, I agree with you” always goes down well. As well as using yes a lot use “we” and try and find out what each party really wants as there may be more mutual ground than first thought.  It is important too that no one loses face and the other acknowledges that.  The bottom line is that it is better for people to negotiate an agreement, to engage in mediation or have discussions, to reach their own solution rather than getting into any sort of Court argument with a decision imposed by a third party. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com. See also “Getting Past No” by William Ury.
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What is Mediation?

mediationThis might be a strange question as everyone assumes they know what mediation is.   But when you also have collaboration, arbitration and compromise, what exactly is mediation and how does it differ from the other approaches to problem-solving? With mediation there is generally one mediator with two people who have, for whatever reason, not been able to resolve the difficulties between them.  There may be some conflict; if there is a relationship breakdown there is generally a degree of hurt, anger, sadness and other emotions, all of which can make it difficult to resolve issues.  But the point is to deal with differences, not in a destructive adversarial way, but with a more rational, positive approach to problem-solving.  You are not going to eliminate conflict but rather transform it and separate those involved and their emotions from the particular problems. The issues or problems can be:  how are the couple going to separate, where are they going to live, how are they going to manage the children?  There will need to be some degree of co-parenting but how will this work out in practise?  A rational approach does not mean leaving aside personal feelings but to try and concentrate on what the problems are, not the emotional aspects of the relationship. If you are separating it must be better to work towards your own solutions rather than having a decision dictated by someone else.  So often you hear talk about “going to Court” as if it is some sort of panacea that will automatically solve all the problems.  It might produce a decision but whether it is the right decision is a moot point.  It is not the decision the parties may have chosen for themselves and it is sometimes not one that may have thoroughly considered the practicalities of its implementation.  The best solution for a couple going through a divorce or separation is one they have created rather than the one that is imposed. It may be difficult not to take up positions and feel that any sort of compromise is giving in.  But the more people position themselves, the more committed they become to that position, defending it against attack and so becoming concerned about saving face rather than reaching an agreement.  The more attention that is paid to positions, the less attention is devoted to meeting the underlying concerns of both parties.  A mediator can help move from positions to focusing on what the parties really want, looking at interests rather than positions. Mediation is not a question of one party imposing their view, as any settlement achieved by hard bargaining may resort in short-term gain but often the result is damaging to the relationship.  The whole point of working through issues either through mediation or the collaborative process is to preserve some sort of relationship between the parties.  Although parents might be separating, it remains essential for their children that they maintain the ability to communicate. People often come to mediation realising that the stakes are high and feeling threatened, fearful or anxious.  Emotions in one party will generate emotions in the other – fear and anger may take over.  It is important to recognise, understand and acknowledge emotions, many of which are driven by concerns.  Attending to those concerns can possibly deal with the emotions and so create a more positive climate for problem-solving.  Emotions are legitimate but they should not necessarily take over and determine outcomes. With the lack of legal aid now available to fund most Family Court actions and with the cost of arguing through Lawyers and the Courts rising, it makes sense to look for alternative ways to problem-solve.  Mediation and the collaborative approach in divorce not only are a means of problem-solving, without the bitterness that can ensue with Court battles, but also far more cost effective. For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.
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