Family law mediation is most often used as a positive alternative to litigation. It is a process in which both parties sit down with a neutral third person skilled in conflict resolution, and resolve their disputes themselves. Mediators help create an environment that fosters listening, compromise and resolution. If necessary, they also help the parties involved create binding documents.

Participants almost always reach a peaceful resolution – mediation has an over 90 percent success rate. Those involved in this process are able to move forward with their lives and relationships in a more positive fashion. Such negotiations are confidential, which is an attractive feature for people addressing private issues such as addiction. Participants are encouraged to formulate creative solutions, and because the participants decide the outcome, there is little risk of a bad result.

By contrast, litigation is often a stressful, time-consuming and expensive manner of addressing legal issues. It is also a public process that often creates more conflict and animosity for the parties. Conflict and animosity are difficult for everyone, but especially for children caught in the middle or individuals addressing addiction issues. It is not unusual for someone’s past or ongoing addiction to be used against them in court, especially when children are involved. At the end of a case, the parties’ fates are in the hands of a judge, who has limited options on how to resolve issues and who may create orders that are damaging to one or all of those involved.

Almost any type of family issue can be mediated, including divorce, legal separation, paternity actions and post-decree matters. Different states offer more or fewer remedies. The following is a list of potential ways mediation can be used to address addiction issues:

• In a mediated divorce, legal separation or paternity action, parents can create parenting plans which address addiction concerns and the potential impact on children. Some plans may forbid alcohol use partially or completely before and during access periods with the child. Parents may also devise other safeguards, such as random drug testing and mandatory counseling. Such provisions help a parent in recovery demonstrate trustworthiness while allowing the other parent to feel some sense of security that the children will not suffer because of an addiction issue.
• After a divorce or similar action is completed, parents can return to mediation to address a request for increased time with a child. Similarly, if a parent is going through a difficult time, the participants can temporarily modify orders to address the situation.
• Couples can become legally separated until one party achieves a certain level of sobriety. By legally separating, the parties can divide their assets and debts, then make arrangements for support issues and parenting time during this transition period.
• Parties can also use a legal separation mediation to help prevent one party from being legally responsible for the other party’s future debts. This type of action is especially useful when the addiction involves gambling, or otherwise results in financial waste or heightened financial liability. People may address concerns that their partner could drive under the influence or face other criminal charges that can have financial repercussions.
• Couples can create agreements that allow them to stay married. They can agree to stay in treatment or forego illicit drugs as part of a mediated agreement. Contracts between married people (sometimes called post-nuptial agreements) are often considered binding, as long as they do not violate public policy.
• People can also use mediation to reconcile with partners or other family members. This provides a forum to communicate in a positive manner and to resolve ongoing conflicts or resentments. These types of mediations generally do not result in a binding agreement, unlike those involving legal actions. Instead, in a facilitated conversation to help make it as productive and comfortable as possible, those taking part in the process air their concerns, feel heard and understood, then create a road map for moving forward in relationships.

If one party is the victim of domestic violence, mediation may not be appropriate. However, if the individual is able to self-advocate, steps can be taken to proceed while protecting the victim. For example, the two parties can remain in different rooms or buildings utilizing video or telephone conferencing. In all such situations, individuals can choose to be represented by an attorney.

I have chosen this profession because I am able to help people who may otherwise face traumatic legal action or who may not have the strength or resources to address their legal and other needs. I see parents who are able to remain friendly after a divorce and children who are spared the aftermath of a nasty legal action. In addition, I have the privilege of helping couples take the first steps toward putting their lives back together in a positive and loving manner.

NOTE: This is a general interest article only and is not intended as legal advice. See a legal professional before making legal decisions.

 Alona M. Gottfried is a family law mediator and attorney in Arizona. She may be reached at 480.998.1500, alona@sglawaz.com or Simmons & Gottfried, PLLC, 8160 E. Butherus Dr., Suite #7, Scottsdale, Arizona 85260. Her website is: http://azmediator.com.

http://www.inrecoverymagazine.net/go/

·      Temporarily or permanently stopping or modifying the obligation;

·      Agreeing to delay modifying the obligation through the Court; and

·      Agreeing to direct payments when payments are required through the Clearinghouse.

Why is this potentially the biggest mistake you can make? Because, despite the informal agreement, the other party may march into Court and demand all of the money that would have been due under your order, plus interest. The person owed the money / obligee can often do this even years after the fact. The other party may also seek a contempt finding against you, which may result in incarceration, unless you pay a designated purge amount.

What should you do if you want to modify a support or maintenance order without a big fight? Go to mediation and work out the terms of your agreement. A mediator can also help you file the appropriate documents with the Court.

What if the modification is temporary, and you do not want to change the Order? A mediator can also help you prepare a stipulation that will provide more protection if the other party changes his/her mind and tries to collect the money.

If the State is involved in the child support matter because it has provided welfare/aid to the receiving parent, you will need to include the State in any agreement.

An important note: the Court will not modify child support retroactively earlier than the date you have both filed and given the other party formal notice of the action (absent an agreement). So, if you want to modify support, do not wait.

Child support can be modified whenever there is a substantial and continuing change of circumstances. Spousal maintenance can be modified under similar conditions, unless your agreement is non-modifiable.  As with most family law (and other) issues, it is almost always much better to sit down and reach an agreement with a neutral third party (the mediator) who can help the two of you formalize agreements and obtain orders, than to litigate.

Alona M. Gottfried is a family mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

480-998-1500

In this time when focusing on the future can be difficult, our professionals specialize in helping individuals learn more about choices they have regarding the home mortgage.

Questions that may need to be addressed:

• How is the title (ownership) to the home currently held?
• Will the marital home be sold?
• If not, who will retain possession of the home?
• How will the spouse leaving the home be compensated for the equity in the home?
• Can the spouse moving out of the home qualify for a new home?
• How will any equity accumulated in the home be determined and each party compensated?
• How can the equity be accessed if the home is not sold?
• Is a refinance necessary?
• What types of loan programs are available?
• Can the spouse retaining the home qualify for the refinance?
• What if one spouse has been out of the work force for an extended period of time?

Fair Value of the Home

 The value of the marital home can be determined through an appraiser, who will arrive at the value after review of the home, thorough analysis of existing market conditions and recent sales. To avoid disagreements over value, both parties should agree on who will complete the appraisal and how to resolve any issues with the value when the appraisal is completed. We can provide referrals of established and experienced appraisers to provide you with this value validation.

Sale of the Home

 If neither party wishes to remain in the marital home, or if neither party can qualify for a new mortgage on the home, sale of the home may be the only option. In this case, Guardian Mortgage Company can provide referrals to reputable real estate agents and help determine the estimated amount of equity available at various contract values. We can also assist any and all spouses in potentially qualifying for the purchase of a new home.

Retaining the Home

Without an Existing Mortgage:

If there is currently no mortgage on the home, a general warranty deed is the easiest way to transfer title from one spouse to another. An attorney can prepare this document and have it recorded with the county for a nominal fee.

With an Existing Mortgage:

Though a general warranty deed will transfer ownership of the home, the document does not remove the vacating spouse from the current or future financial responsibility on the mortgage if both spouses are borrowers on the existing mortgage. Only through satisfaction of the existing mortgage will the vacating spouse be free of this obligation.

Without such satisfaction, the spouse leaving the home will carry the liability of the mortgage on their credit record. They will also bear responsibility for any delinquency on the account. Carrying the additional debt may also affect their ability to qualify for future mortgage, auto and consumer financing.

Refinancing serves as a valuable tool to facilitate removal of the vacating spouse from any and all financing obligations on the marital home. We can assist in evaluating the refinance options available and determine the best loan program, structure and terms for the new mortgage.

Compensation for the Spouse Leaving the Home

 Options for compensation for the spouse who will be changing residence will vary depending on available equity as well as the other assets and borrowing power of the remaining spouse.

If the remaining spouse qualifies for a new mortgage, a “cash-out” refinance with “owelty lien” or new

home equity loan may be used to compensate the vacating spouse by drawing cash out of the equity in the property. There are a variety of mortgage options for accessing the equity in the home. One of our mortgage professionals will help you determine the best solution given your specific financial condition.

If qualification for a refinance or new equity lien is not possible, compensation will need to be arranged through the liquidation or transfer of other marital assets.

Divorce and New Mortgages

Qualification for a new mortgage can be a challenge for divorced individuals. Alimony and child support payment often adversely affect one’s ability to qualify.

Payments of these items may affect qualification ratios, whereas receipt of these payments for less than an established period of time often disqualifies their ability to be considered as income on the new mortgage approval.

Guardian Mortgage Company professionals are experienced in the guidelines for documenting payment or receipt of alimony and child support and can provide clarity and support for the new mortgage process.

Mark Shaw

Senior Loan Officer, NMLS #166607

Guardian Mortgage Company, Inc. 

AZ Loan Originator 0927054

6929 E. Greenway Parkway | Suite 250 | Scottsdale, AZ 85254
Office: (480) 400-7900 | Direct: (602) 899-6247
MarkShaw@gmc-inc.com
www.guardianmortgageonline.com

I warn mediation participants that some of the tasks mediators necessarily perform may make a participant question the mediator’s neutrality. These situations generally occur when the parties choose to be in separate rooms. Most mediations where participants do not have attorneys with them are conducted with the participants in the same room, unless there is a significant conflict between the parties, or the parties reach a point in the mediation where being in separate rooms may facilitate resolution. Many mediations that occur with attorneys are conducted largely in separate rooms, so counsel can freely provide legal advice to their clients. Whether the participants are together or in separate rooms is generally a decision left to the participants.

Some examples of scenarios where a mediator may appear biased when they are not, are:

• When parties choose to be in separate rooms during a mediation, the mediator has the task of conveying to all participants each participant’s positions and one participant’s opinion as to the weaknesses in the other participant’s positions. The mediator must relay this information, so all participants understand each other’s positions and have the opportunity to rebut any misunderstandings. What a participant in a separate room is not able to see is that the mediator is also conveying that participant’s positions to the other party in the same way. The mediator attempts to convey all positions in a favorable light, as all participants would want their positions conveyed.

• It may also seem that a mediator is biased when he/she asks challenging questions or plays “devil’s advocate.” Mediators do this to help mediation participants think about their dispute in another way and/or to help the mediator convey a response to concerns the other party is raising.

• If it is true, mediators may also convey their impression that the other participant is negotiating in good faith, as intention is something that is not obvious when participants are in different rooms.

• It is sometimes not feasible or necessary to spend exactly the same amount of time with each participant. Sometimes, only one participant provided significant information prior to the mediation. In other cases, one participant may need more time to process and consider proposed settlements. When a mediator is with one participant, it often seems like a very long wait for the other participant; I warn people of this perception and ensure them I will spend as much time as they need with them as well.

• In certain instances, it is appropriate for a mediator to offer their opinion about a party’s claims. When mediators give their opinion as to the merits of a case it is called “evaluative mediation,” and it is a recognized type of mediation, not indicative of bias. If an opinion is given, it is done privately with the participant in question, so as to not cause any embarrassment to a participant or provide any advantage to the other participant.

Depending on the nature of the mediation, mediation can be emotional and raise negative feelings.  Your mediator is there to make the process easier. If you have any concerns about an action the mediator takes, ask him/her. The mediator will likely have a good explanation that will make you feel better about the process.

Alona M. Gottfried is a mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions. 

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

480-998-1500

This fact again made its way into the public consciousness as it became known that Ben Affleck and Jennifer Garner decided to divorce using the mediation process. See Yahoo Parenting Article: “Jennifer Garner and Ben Affleck’s Ambitious Co-Parenting Strategy,” by Elise Solé, July 1, 2015.   According to a US Weekly source quoted in the article: “They want it to be simple and this takes the drama out of it. It is important for them to keep this nice and efficient for the sake of their family.” The article goes on to state that the divorcing couple have: “even hired a mediator to expedite the divorce procedure amicably.”

The reporter, Ms. Solé, interviewed Fran Walfish, PsyD, a psychotherapist in Beverly Hills, California, who had this to say, according to the reporter:  “[A] mediator is a neutral person who sits down with a couple and guides them toward a mutual agreement. ‘What Ben and Jen are saying is, ‘We don’t want to fight.’ Mediators are also often hired by people who can’t afford legal counsel, so it’s noteworthy that a wealthy celebrity couple is taking this approach.”

Wise words were also included in the article from Ritchie Sambora, who has a child with ex-wife Heather Locklear:  “We’re better friends now than ever. If you don’t get along you are messing the kid up. That’s what happens. So you have to put that before whatever s— is going on. Communication has got to come first. There’s a cooling off period obviously, as you know. It takes time.”

Alona M. Gottfried is a family mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

480-998-1500

K.H. recently used our mediation services to get a legal separation. He had the following to say about the process:

Divorce or separation is never a pleasant experience; however, being through it before, the mediation process is much easier, less expensive and quicker than getting multiple lawyers involved. Alona was unbiased during the process and was able to guide us to a decision or compromise without much difficulty.

He further stated:

Overall Alona made the mediation process as smooth as possible. I had a lot of questions before, during and even afterwards and Alona always responded promptly and appropriately.

K.H. ended his comments with:

Alona, I want to personally thank you for your support during this difficult time!

 You can see more client reviews and comments at:

https://azmediator.com/mediation-faqs/arizona-mediation-testimonials/.

 Alona M. Gottfried is a family mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

480-998-1500

A spokesman for the program reported that mediation: “drastically lowers the risk of children being caught in the bitterness between warring and insecure parents…” Further: “Children will be more secure and less traumatised [sic] by the breakdown of their parents’ relationship.”

The reporter interviewed lawyer and family mediator Mr. Rajan Chettiar, who discussed how children get dragged into parents’ fights and exposed to parents’ “pain and anger.”  He described seeing parents attempt to influence children against the other parent or prevent access with the other parent “to get the upper hand in their custody battle.”  Clearly, such behavior is contrary to children’s best interests.  Mediation, says Mr. Chettiar, allows parents “to listen to and understand each other and negotiate solutions that are in their child’s best interests.”

Another lawyer and mediator interviewed, Foo Siew Fong, stated that mediation or counseling helps because parents: “are in too much pain to think clearly and calmly” for the benefit of their children.

The article also describes the obvious financial benefit of settling in mediation rather than facing lengthy and contentious litigation.

Alona M. Gottfried is a family mediator and attorney in Arizona.  If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com.  This is a general interest article only and is not intended to be legal advice.  See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

The following is information from which participants in mediation may benefit to resolve a spousal maintenance issue:

1. What is Spousal Maintenance?

Spousal maintenance is support paid to a spouse in a divorce or legal separation action. It is intended to help certain spouses get back on their feet financially, or to provide assistance to people that will never be able to support themselves.

To qualify for spousal maintenance, one of the following factors must apply:

A. The requesting spouse must not have sufficient property, including the property awarded in a divorce or legal separation, to provide for that spouse’s reasonable needs;

B. The requesting spouse must not be able to support him/her self through appropriate employment, or that spouse must care for a child that, because of the child’s age or condition, requires that spouse to not earn an income;

C. The requesting spouse contributed to the educational opportunities of the other party;

D. The marriage was of a long duration, and the requesting spouse’s age may prevent him/her from gaining employment that would allow him/her to be self-sufficient.

Once it is determined that a person qualifies for spousal maintenance, the next questions are: how much spousal maintenance and for what length of time? The Court looks at thirteen different factors to determine the length and duration of spousal maintenance. The factors include: the length of the marriage, the standard of living the parties enjoyed, the paying spouse’s ability to pay and the resources of the party receiving support. All of the factors can be found in Arizona Revised Statute § 25-319, which is available online.

2. Understanding the Benefits of Resolving the Issue in Mediation.

Using mediation to resolve a spousal maintenance issue has the following benefits:

A. Going to court on the issue of spousal maintenance is very risky. The Court has a lot of discretion, and it is impossible to accurately predict the outcome of a contested spousal maintenance issue. If the same case is tried in front of five different judges, parties are likely to get five different spousal maintenance awards.

B. The Court only has the authority to enter modifiable spousal maintenance, unless the parties agree otherwise. This means that either party can ask the Court to change the spousal maintenance Order (increase or decrease the time period it is awarded or the amount awarded) if the request is made during the term of the spousal maintenance award. With an agreement, the parties can choose to make spousal maintenance non-modifiable (meaning, no matter what happens, neither party may modify the terms of spousal maintenance, without the agreement of the other party). Some people like this option because it provides them with certainty.

C. With an agreement, the parties can enter other flexible terms, like:

1. Allowing spousal maintenance to automatically end under defined conditions (like if the party receiving spousal maintenance cohabitates);

2. Allowing spousal maintenance to decrease or increase in amount over time, either automatically or based, for example, on the amount of money the receiving spouse is earning (for example, if a party earns X, spousal maintenance decreases or increases to Y);

3. Allowing spousal maintenance to continue past remarriage. Absent an agreement otherwise, spousal maintenance ends on the receiving party’s remarriage or either party’s death.

4. Parties can also be more creative about the methods of payments, though they should talk to an accountant to confirm the payment method does not disqualify the payments from being considered spousal maintenance.

D. It can be quite expensive and time consuming to litigate the issue of spousal maintenance. To prove ones case, extensive discovery is often needed. Also, sometimes multiple experts are needed – like forensic accountants and vocational experts. Sometimes parties share experts, but, often, each party retains his/her own expert, thereby exponentially increasing the cost. By contrast, when parties reach their own agreements in mediation, most of that cost can be avoided as the parties work together to find a good compromise, without the risk and cost associated with litigation.

3. Determining the Participants’ Needs and Abilities.

Often, the mediation participants’ decision regarding the terms of spousal maintenance comes down to one party’s need and the other’s ability to pay. A modicum of reasonableness and common sense, which can be brought out by a skilled mediator, is needed to determine the duration of spousal maintenance (Were the spouses married two years, or thirty? Is the receiving party twenty years old or eighty?). To help determine needs and abilities, it is useful for the mediation participants to complete a written budget.

4. Use of Experts.

A financial planner skilled in divorce issues can help the participants determine their needs and abilities in a more sophisticated and accurate way, which sometimes helps mediation participants break an impasse on the issue of spousal maintenance. The participants can also choose to jointly retain a vocational expert to assess the earning ability of a spouse who has been out of the job market. Even when experts are used in mediation, the costs are lower than in litigation because the parties generally jointly retain one expert, and the expert’s role is limited – trial preparation and testimony are not necessary.

As with all mediations, it is recommended that the participants consult with a “mediation-friendly” attorney before entering into an agreement. Additionally, spousal maintenance has tax consequences, so participants are also encouraged to consult with an accountant before making a final decision on a spousal maintenance agreement.

Alona M. Gottfried is a mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

The following are ways mediators can help address concerns of non-disclosure:

1. Mediators can facilitate the exchange of information requested by each participant. The participants can enter binding agreements in mediation about what documents they are going to exchange, or what releases they are going to sign, and when. The participants can also agree to consequences for non-disclosure during the mediation process.

2. Mediators can explain to the participants the Disclosure Rules. Mediating a divorce, paternity action, or other family law matter does not make one immune from the Disclosure Rules. See Arizona Rule of Family Law Procedure 49. Mediators can also discuss more formal discovery. While during the mediation process it is uncommon to have formal discovery requests or subpoenas issued, it is possible.

3. Mediators can assist the participants in jointly retaining a forensic accountant, if necessary.

4. Mediators can explain that litigation may not solve the issue of a party hiding assets or income. It can be very difficult to find hidden funds. One cannot subpoena every financial institution to look for assets. Litigation often does not help, except to compel discovery or disclosure where a participant will not comply.

5. Mediators can help the participants draft terms in their Decree to address a participant’s concern about hidden assets, like awarding an asset found after the entry of the Decree to the other participant, or requiring ongoing disclosure.

Alona M. Gottfried is a mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

Family law mediations must comply with Arizona Rules of Family Law Procedure 67(B) and 68(B). These Rules state that where there is an Order of Protection involving the parties, or a Court issues finding of facts that would support the entry of such an Order, the Court may only refer the parties to mediation if there are “are policies and procedures in place that protect the victim from harm, harassment, or intimidation.” Id. Parties must be notified of their right to request that a mediation requirement be waived, or request reasonable procedures to protect a domestic violence victim. Id. Also, a mediator may reject or terminate a mediation if he/she deems it appropriate, based on domestic violence. Id.

            The mediator can take certain precautions to ensure the comfort and safety of a domestic violence victim. The Family Violence Department of the National Council of Juvenile and Family Court Judges prepared an article entitled: “Mediating When Domestic Violence/Control Exists,” in which it offered the following suggestions for mediating where there is domestic violence:

1. Ask the victim what precautions he/she would like in place.
2. Allow the victim to bring someone with him/her, so she/he feels more comfortable, or allow him/her to use the phone as he/she wishes to contact such individuals.
3. Have separate waiting areas.
4. Mediate while keeping the parties separated (in different rooms, telephonically or through video conferencing), and otherwise orchestrate the mediation so the participants do not see each other.
5. Do not leave the parties alone.

6. Remind the participants that they can end the mediation session or process at any time.

7. Check in with the abused party, and continually reevaluate safety.

8. Terminate mediation if necessary.

9. Craft clear agreements to reduce the opportunity for the abuser to take advantage of ambiguities.

10. Make sure the victim has a place to review paperwork, especially if the participants are still living together.

11. Offer to help to find safe arrangements for the victim.

12. Escort the victim to his/her car.

If you are a victim of domestic violence, and you would still like to mediate your matter, inform your mediator, so he/she can make the experience as positive and productive as possible.

Alona M. Gottfried is a mediator and attorney in Arizona. If you have questions about mediation, she can be reached at: 480-998-1500 or alona@sglawaz.com. This is a general interest article only and is not intended to be legal advice. See a legal professional before making legal decisions.

Simmons & Gottfried, PLLC
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260