How realistic is shared care of the children?

3 children runningEven in families with a stay-at-home mother or father, generally speaking most parents share the care of their children in some way or other.  When parents separate they expect to be able to continue shared care of the children but, obviously, whatever arrangements need to be made can be difficult to envisage before the parties actually separate.  What does shared care look like?  Is it one week with one parent, one week with the other?  This might be “fair” in terms of equalising the time spent with both parents but is it right for children to be continually moving from one house to the next?  Do they not need a base – but with whom?

According to research carried out by Oxford University only 3% of separated families in the UK are currently in a shared care arrangement.  In Australia the concept of “equal shared parental responsibility” except where there is violence or abuse has been enshrined in law since 2006.  This means that of cases coming before the Court, 30% are being forced into a shared care arrangement.  So those parents whose relationship is not good – because they have had to resort to the Court to decide how to care for their children – are the very parents who are forced into a shared care arrangement and are therefore having to have constant communication with each other.

The best interests of children after parental separation is not dependant upon the amount of time which they spend with each parent but more with the quality of parenting received, the quality of the relationship between their parents, the practical resources available including income and housing – and definitely not to any particular pattern of care or amount of time.

Perhaps in an effort to be fair to parents there is a danger of being unfair to children?

Frequent moves between households can, for children, bring practical and emotional difficulties in terms of the constant packing and planning.  But, obviously, the level of difficulty depends on the distance between moves, the frequency of moves, the level of any conflict between the parents and also the child’s personality and preferences.  So each case must depend not just on practical arrangements for the child but what their personality and the effect of a shared arrangement would be on them.  How is the voice of the child heard?  Is it heard at all?

The Courts are currently directed to look at the best needs of the child or children – the welfare of these children should be paramount.  Is it actually possible to achieve both “fairness” to act in the best interests of the child?

Rather than arguing through the Courts and becoming more and more polarised, parents should try and work together to ensure that everyone’s needs – theirs and the children’s – are met, and family therapy may be more appropriate than litigation.  Parents have a responsibility to ensure the long-term wellbeing of their children.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

Read more...

Mediation or litigation?

What is Mediation | Advice from Cotswold MediationIt is the New Year, and according to media reports, a time when many people face the reality of separation and most will at least start out in the hope that whatever needs to be done can be dealt with as painlessly and economically as possible.  It should therefore be the case, when choosing between mediation or litigation, that mediation is the preferred option.  It might come as some surprise then that the figures speak very differently.

Most couples who separate or divorce do not in fact seek the mediation route.  They may well go to a solicitor who suggests or even recommends mediation but for one reason or another they end up litigating, arguing through the courts rather than engaging in far more constructive round table discussions.  Why is this?

Well actually, although mediation may seem the most sensible and rational option, when you fall out of love and when you separate, rational thinking often gets lost in the heat of the moment.  There may be bitter recriminations, painful memories, resentment, anger, despair, sadness.  All these emotions can persuade people that using the courts, “having their say”, having their day in court, putting their case as forcefully as possible, possibly even proving that they are right in some way is worth the agony and expense of litigation.  I disagree!  It is hardly ever worth it.

In mediation you are on your own with the mediator, there is no one there to help, defend or speak for you.  The onus is on you and perhaps people find it difficult to behave well with the person they once loved who is now very much on the opposite side of the fence.  People may want the support, advice and encouragement of their lawyer and may feel justified in putting forward their case to possibly get more of the assets or more time with the children.  But obviously there is only so much to be divided and if money is spent on court proceedings then there is less for the parties.

For whatever reason, it can be difficult for people to choose mediation which is why the take-up has been surprisingly low but perhaps this year’s New Year’s Resolution should be mediation and not litigation for separating couples.  

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

Read more...

Protecting children during separation

 

Children playingGenerally, when parents separate, one of the most difficult aspects for them both is how to tell the children and how to make their separation as painless as possible for their children.

There is obviously no good time for telling bad news and no ideal way of doing it.  It is going to vary tremendously according to the ages of the children and circumstances of the separation but equally, obviously, if the parents can be seen to be working together to ensure the best possible outcome for their children, that will help their children enormously.

Most children will know long before they are told that there have been issues between the parents. Maybe there have been arguments or just a feeling of unease and lack of communication.  Most children, too, would prefer the arguments and unpleasantness to end and it may well be that if the parents are happier apart then so will the children.  The important thing to avoid is giving the children the impression that they have to take sides.  They want to be able to love both parents and both parents must allow them to love and have a good relationship with the other.

As parents, we must try not to let our children see us upset when they go to the “other” parent.  They may feel guilty about spending time with one or other parent, if the other is left at home alone and sad.

Most parents manage to work out some sort of practical arrangement so the children see both parents, the children know when they are to be at one or the other’s house and in time a new pattern and new relationships develop.

As Susan Trussel, The Banbury Therapy, said in a recent article, the most important thing is that the children know they are loved by both parents and they don’t have to choose between them.  Working together will help to ensure the best possible outcome for your children and mediation is often a good place to start that process.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

Read more...

Values in family matters

Values in family matters can mean those such as honour, dignity, trust etc and values as in terms of how much the property and other assets are worth.

Very often valuations are difficult to agree because of the breakdown in trust and communication that it is an inevitable part of divorce.  It may also be caused by the fact that if there is not quite enough money to enable both parties to rehouse themselves or start again in a satisfactory way, then the value of the assets become critical and therefore hard to agree.

Values in family mattersIf for instance the wife wants to stay in the family home she may have to pay something to the husband to enable him to move on – how much she pays depends on the “value” of the property.  But in reality it may depend on how much she can afford and how much she wants to stay in that house.  It may also depend on how much the husband needs together with his earning and mortgage capacity to enable him to buy a suitable or similar property.

Even more problematic are business valuations.  Very often only one of the parties will have been involved in the business and the other party may have an over inflated idea of what the business is worth.  Just because the business has in the past generated a good income for the family it does not mean that either the business will continue to generate that income or that it is worth for instance three times the profit.  These valuations are unrealistic.  What a business is worth is what anybody is prepared to pay for it and they will weigh up the risk of taking on a new venture with or without the current proprietor and so a business valuation can be very problematic.

This difficulty can be very expensive for the parties.  It can be the source of endless litigation which as everybody knows is very expensive, as well as emotionally damaging for all concerned, trying to establish exactly what the business is worth.  One party will argue that it is worth a lot more than the other – but neither really knows.  There is a strong argument for calling in experts early on.  They can help, although they also cost money, in determining the value of key assets – the family home, a pension if it is of significant value and the business.  If figures are agreed this makes negotiation much easier.  Even if the figures are not particularly palatable to either or both parties, they are at least fixed and enable negotiations to take place.

Although valuations may be expensive when money is tight – as it always is when people are separating – it may actually be cost effective to get an early and professional valuation of key assets.

Pensions have what is known as a cash equivalent transfer value but any independent financial advisor will tell you that this does not necessarily mean what it says, there are some pensions which carry significant benefits within them which mean that the face value, the CETV is actually a significant under value.  So again worth getting an expert opinion early on.

Sentiments I would also echo in relation to advice in relation to divorce and mediation too.

Expert valuations can provide clarity, not just in terms of actual price but also in explaining complex financial information or providing a professional judgement on the value of a key financial asset – particularly important if one asset, whether it be business or pension, forms a significant proportion of the couple’s total assets.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

Read more...

Research reveals high satisfaction with collaborative law

An interdisciplinary research project looking at how people accessed help in family disputes has just published preliminary findings from a national survey into the three major forms of out of court family dispute resolution which are Mediation, negotiation between Solicitors and Collaborative Law.

The three year study commenced in July 2011 and is funded by the Economic and Social Research Panel.

Client at a deskGenerally Mediation was recognised as the most common way of dealing with matters outside of Court but there was also higher than expected recognition and experience of Collaborative Law, which has only really been available in Britain since 2006.  Collaborative Law also achieved the highest level of satisfaction amongst the participants to the questionnaire.  There were some problems expressed with Mediation, some clients feeling dissatisfied as they felt intimidated and unprotected by the Mediator.  There is often insufficient time spent explaining the difference between Mediation and the Collaborative process.  They may sound similar but in practice are very different, particularly if you feel vulnerable or anxious and need the support of a solicitor with you in negotiations.

In Mediation you are on your own with the Mediator and your partner or ex-partner.  That can be frightening or at least intimidating, certainly disconcerting. The Mediator does not intervene on your behalf, the Mediator is neutral.  However this can be a very cost effective way to negotiate settlements but equally it can be intimidating.

With Collaborative Law you have your lawyer with you who supports you but also in the collaborative process, both lawyers are trying to reach a settlement and it is all carried out in a very open and transparent way with all parties present.  There is little opportunity for either intimidation or for one party to become aggressive or intimidating or to be difficult about seeking compromise.

The survey found that people going through divorce found Mediation very hard emotionally as a process – but Mediation is designed to be in parallel with using a solicitor who should support you through the process.  Very often though, of course, cost means that people are reluctant to spend time with both Lawyer and Mediator.

A significant finding of the research was that of the divorce/separated post 1996 sub-sample, women who were offered Mediation were less likely to take it up (49%) then men (71%).  Although of those who did take it up, women were more likely to be neutral about the process (40%) whilst men were significantly more likely to be dissatisfied (55%).

For more information about the project see Mapping the Paths of Family Justice

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

Read more...

When is a marriage not a marriage?

4 children playingVery often you hear people say “well, they’ve been together for years and they have children so the partner must have acquired an interest in the property” or you hear the term “common law marriage” and the implication that this must mean something.  Well it doesn’t – there is no such thing as common law marriage.  You are either married or not married.  If you are not married then you do not acquire an interest in anything belonging to the other party, however long you may have lived together, unless you actually take the trouble to put the house and any other assets into joint names.  So, if a couple have lived together for years and have several children, but the house is in the sole name of the man, then the woman has absolutely no claim in relation to the house – even if she has paid the mortgage and/or brought up the children.  The only claim would be on behalf of those children under Schedule 2 of the Children Act.  This would be a claim made for support while the children remain dependent, generally up until the age of 18 or while they are in full-time secondary education.  Any capital or housing provision made for those children ends when they reach the age of 18 and the capital would go back to their father.

So just a very small message, which I don’t seem to be able to repeat often enough – the mere fact of cohabitation does not convey any rights, however long you may have lived together and whether or not you have any children.

This also means that unless you make a Will leaving your assets to the partner, then if you are not married your partner will not receive anything – if you die without a Will then your estate passes under the Rules of Intestacy to your nearest relative, not your partner unless you are married.  So being married makes a difference.  Take it seriously!

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

Read more...

The most popular age to get divorced?

There were several articles in the press recently about the latest divorce figures suggesting that the only reported rise in the divorce rate is amongst the 60+ age range.  This doesn’t necessarily mean of course that this is the most popular age for divorce, merely that there is a new trend – the numbers of those over 65 getting divorced is certainly increasing but in my view the most common age for divorce remains mid-late 40’s.

This may be because younger people have never married in the first place.  With short-term relationships or marriages there are often no children or few assets to argue over – it is only when there are children, pensions, property, mortgages and all the other aspects of aging and longer relationships that separation becomes more complicated.

IMG_9769webSo why more divorces amongst the over 65?  Is this simply an aspect of us all living longer and having higher expectations of our retirement?  We are no longer prepared to simply settle down with our partner of the last 20-30 years.  We may decide that the prospect of possibly 20 years with your current partner and no work as a diversion is simply too much to bear.

It can though come as a shock to anyone expecting to retire on a comfortable pension to suddenly find themselves faced with a Divorce Petition which will involve sharing that pension and possibly selling the matrimonial home and looking at either down-sizing or taking out a mortgage when you least expected it.  There are some advantages though to divorce so late – children are generally grown up, possibly even having left university, you are no longer responsible for them in any way, you no longer have to provide a ‘family home’ in the traditional sense.  But however old they may be, children still feel the impact and possible pain of their parents’ separation.  They may have left home but they would like the possibility of returning to what was their childhood home intact, and also what about the grandchildren?

While the percentage of divorcees amongst the over 65’s is still relatively low, the rate of disengagement is growing fast.

Divorce for the retired certainly has different aspects to a separation where there are young children, mortgages to pay and a career to establish – but similar principles apply.  Far better to separate constructively and collaboratively than incur unnecessary legal costs with stressful arguments through the courts.  One expenditure which is hard to avoid however, is an actuarial report.  Pensions obviously loom large in post-retirement separation and a proper actuarial value of your pension is essential.  You will not only want to look at its actual cash value, but also projected incomes going forward for both the male and the female – with their different life expectations they will need different pension pots to produce similar incomes.  Never has professional advice in relation to pensions been so important.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

Read more...

Managing Christmas as a divorced or separated parent

Although it is only November, as soon as the clocks go back it seems that everyone is trying to get us to focus on Christmas.  Christmas can be a great family time of year, an excuse to take some time to visit friends and family, but equally it can be a dreadful time of financial and emotional stress which can, for some families, be the final straw.  Or it can just be average:  most peoples’ Christmases are in fact just that – ok, nothing more nothing less.  But unfortunately the weeks of hype that lead up to Christmas encourage everyone to expect that Christmas should in some way be fantastic –  full of smiling parents and beautiful children, the perfect Granny and other relations in attendance, everyone with lavish and perfectly prepared food and great presents which everyone receives with beaming smiles.  Although we all know in reality it’s not like that, the marketing hype inevitably gets to us.

2 children at the windowSo, how can we manage Christmas better particularly if we do not happen to belong to the perfect family?  I think that what people are really short of, despite the recession meaning that people are also short of money, is time and that instead of spending hours shopping for loads of presents or even buying our children lots of things, we should actually propose a different sort of Christmas where spending time is more important than having presents.  Most adults have far too much stuff and I think that can be said of children too, although they might not so readily admit it.

The message must be that if parents can work together in relation to the arrangements for the children, whether together or separate, it is in their best interests.  Try and manage everybody’s expectations so you do not end up being disappointed about the lack of perfection which is an artificial creation anyway.  Reality might actually be better.

Some key points to focus on if you are separated: –

  • Agree which parent will have access to the children and when.
  • Allow the children to be able to fully relax and have a fun time with only one parent, without feeling disloyal or missing the other parent.
  • Avoid any competition between you about the provision of presents and stuff generally.  Is the parent with a better job or a new partner able to give the children a better time?  Don’t go there!
  • Think about how you deal with the fact that there may be sad memories of past Christmases when you were all together.

Of course Christmas is a difficult time of year for all families, particularly post separation.  Perhaps the following might help: –

  1. Perfect the essential art of enjoying the now – becoming a human being rather than a human doing.  Perfection is, as we have established, impossible so just enjoy what and who you have.
  2. Count to ten or take three deep breaths and relax before responding to a wind up from your nearest and dearest in whatever form  – text, or even Twitter, Facebook e.t.c.
  3. Try and make up your mind that you are going to have a good time this Christmas whatever the circumstances leading up to it and plan ahead.  Having a schedule in place for when the children will be with each partner if you are separated will ease their anxiety and help any transitions between parents.
  4. Try and let go and have fun!

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

Read more...

Is the divorce process unfair to men?

I make no apologies for revisiting this issue as it does seem to be a common concern.  There is a widespread perception that with the divorce process and any issue or argument over children, particularly if it is conducted through the courts, favours women.  Is this correct?

post_imageThe courts, when dealing with children, have as their primary concern the welfare of the children.  A fairly neutral position and certainly one that is supposedly child focused as opposed to looking after the interests of either parent.

Similarly, if the issue of finances is debated through the courts, then again the court would take a position that both parties to a divorce need to be adequately re-housed and that both parents have to have accommodation suitable for their children to visit.  So why is there this widespread perception that men do badly in divorce, or that the whole process is unfair and biased in some way against them?

It may be in some way related to the other statistic, which is that most divorces are commenced by women.  This may have something to do with the fact that women tend to want to do something about a situation that is unsatisfactory, whereas men are more prepared to put up with a degree of difficulty, provided house, home, pension, finances, remain intact – when these are all disturbed they take it rather badly.

Many men feel that they have worked all their lives to achieve a certain standard of living, and with that, an adequate or even good pension provision.  Obviously a divorce means that the family home may well have to be sold and the sale proceeds distributed, therefore both are in a smaller house, and the highly prized pension pot is also split.  If you are not the instigator of the divorce, you may feel very badly indeed when all these things happen to you, seemingly through no fault of your own – and if your wife is in a new relationship then the pill is even more bitter.

However, if you can step back from the situation, the courts really do try to be even-handed and if you avoid the courts altogether, so much the better.  By using mediation and a collaborative approach to divorce, the focus is on how both parents are going to manage their separation to avoid any damage to the children and to ensure as far as possible, that everyone continues to have a similar lifestyle afterwards.  It cannot be avoided that both parties will be worse off financially as a result of the divorce, but through mediation, there is the real prospect that both parties will feel they’ve had a fair and workable outcome.

For more information or to discuss further please contact Nicky Gough on 07711 527968 or email info@cotswoldmediation.com.

Read more...

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.

Read more...