Category: mediation

Divorce, Domestic Violence and Mediation

Divorce, Domestic Violence and Mediation

This post is written by Abigail C. Barnes with the Alford Law Office.  Abbie is a former director of the McCracken County Child Support Office, former Domestic Violence Prosecutor and former Felony Offense Public Advocate.

 It has been said that going through a divorce is one of the top five stressors in a person’s life.  Add abuse, whether physical or emotional, to the mix and the stress becomes heightened to the point of being dangerous.  In fact, when the abused party is trying to untangle themselves from a toxic relationship,  that is statistically the most dangerous time he or she has to face.  Domestic violence is about power and control.  As anyone who has undergone a divorce would know, a divorce alone leaves you feeling powerless to control your circumstances at best.  If domestic violence is an issue, then usually the abuser fights harder for the upper hand, while the abused party is faced with abuse at a heightened rate.
Mediation is an amazing tool to help an individual going through a divorce maintain some control over what happens.  Mediation is a guided negotiation with a knowledgeable and unbiased party at the helm, helping both parties reach an agreement that satisfies them both.  However, throw the dynamic of domestic violence into the mix, and the negotiations have the tendency to become volatile and one sided.
As a former Domestic Violence Prosecutor, I have seen first hand the affects that domestic violence and abuse have on an individual who has suffered at the hands of an abuser.  Many times, the abuser will expertly manipulate the abused to reach their desired result.  Their end game being to assert their power and control over the situation, thus getting what they want at the expense of the other party.
Fortunately, the courts have recognized this as a significant issue, and many jurisdictions, including Kentucky, prohibit mediation in cases where a Domestic Violence Order (“DVO”) has been entered.  Unfortunately, however, many acts of domestic violence go unreported, thus leaving the court with no knowledge of how ordering parties to mediation may affect the negotiations.  It is not uncommon to have an abused party, who for whatever reason, has not reported the abuse, or who has reported it but did not follow through with charges or a DVO.  In these cases, if the abused party remains silent, they could be sent to mediation and placed into a situation that allows the abuser to maximize his/her power and control over the situation, thus manipulating the abused into a one-sided agreement.  The significance of this can be even more dramatic if there are children involved.
If you find yourself in the situation where you are involved in court proceedings against an individual who has routinely abused you, either physically or emotionally, the best thing you can do to protect your rights is to hire an attorney who understands that dynamic and fully inform them of your circumstances.  Silence truly is your enemy.  Do not remain silent in situations that have the potential to affect your future.  Speak up.  Tell your attorney so that special precautions can be made to protect you from being further intimidated at the negotiating table.

 


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Photo courtesy of Jane Fox

Should I Talk to My Spouse During Our Divorce?

Should I Talk to My Spouse During Our Divorce?

Recently I was involved in a case where it was quite obvious that the other attorney had advised his client not to speak to my client about settlement negotiations. This was a case where the parties had been separated a while and there really was not that much to fight over but the other spouse simply would not sit down and talk to my client about the case. Motions were filed, letters between attorneys were exchanged hearings were set and bills increased. Ultimately, the case got settled for right about what my client wanted to settle it for in the first place. After the fact, my client confirmed that the other spouse’s attorney had, in fact, discouraged communication between the parties that could have resulted in a much quicker resolution (there was also some indication that the attorney was not passing along our settlement proposals, but that is an entirely different problem).

This illustrates a significant problem in a divorce case.  Divorce cases, unlike most civil lawsuits, involve people who know each other. Granted it is probably not wise for two litigants in a car accident case to communicate directly on a regular basis, but that is not usually the case in a divorce. Regardless of whether the parties in a divorce are talking settlement or not, they are most likely going to have to talk about some things. Whether it is transporting little Johnny to the baseball game, who is getting the blender, or who paid the car insurance, there is most likely going to be some communication.

I am a big proponent of keeping the lines of communication open as much as possible during a divorce case. You and your spouse know your lives, and your children’s lives, hopefully, better than anyone else in the world. Moreover, studies routinely show that people who have a hand in the resolution of their case are much more satisfied with the outcome. If you and your spouse can sit down over a cup of coffee and hammer out at least some of your issues, you should go for it as long as you discuss any ultimate agreement with your divorce attorney before signing anything. It will save you money, time, and heartache. If you talk to an attorney who discourages you from talking to your spouse without a valid reason, you should ask yourself why you are getting that advice and who stands to benefit.

Admittedly, there are occasions when talking with the other spouse is not a good idea. In situations of domestic violence, it may not be safe to do so or there could be a court order in place that prohibits communication.  Further, there are some relationships that have become so toxic that it is not a good idea to talk with the other spouse without an attorney or other person present as a buffer. As always, discuss your particular situation with your attorney to figure out what is best for you.

Photo courtesy of Search Engine People Blog

“What About Fido?” Who Gets Custody of the Family Pet?

“What About Fido?” Who Gets Custody of the Family Pet?

The reality is that to many people, their pets are not just like their children, they are their children.  I have been shown family photos that included pets and more than one client has had their pet’s picture made with Santa at Christmas time.

Despite the strong feelings that these people have for their pets, under Kentucky law courts do not equate pets to children.  Kentucky courts treat pets as personal property.  That means that your beloved family dog is treated the same as a microwave oven or a leather recliner.  In my years of practice, I am the only attorney I know of who has actually litigated a pet visitation issue (the other attorney in the case retired).  At the end of that case, the judge said she would never hear another one.  That is the attitude you are likely to encounter with most judges.  They will not order joint custody of a pet any more than they will require you to share time with your blender.

With all that being said, it does not mean that the parties, themselves, cannot come to some sort of agreement on sharing time with their pets.  This is an other issue in which mediation and a spirit of cooperation can end in a positive result.  Many parties are able to work out an arrangement to share time with their pets.  In such a situation, the courts will usually adopt that agreement as part of the final divorce decree.  Be aware, however, that if it becomes necessary to go to court to enforce that agreement in some manner or modify, a judge may still be dubious about the situation.

There may be additional considerations depending on your particular situation.  For instance, some veterinarians seem cautious about the idea of shared custody of a dog and do not recommend it at all for cats.  More exotic pets may be even more troublesome.  Further, keep in mind that if you got your pet from a rescue organization or pet placement program, you may have signed a contract that limited your rights to the animal and where or with whom the animal may live.  Finally, in the event of domestic violence in your relationship, it is not uncommon for an abuser to use your pet as a way of hurting you further so it may be necessary to take steps to ensure that “Fido” is protected along with you.

Photo courtesy of Stefano Mortellaro